An information charging respondent with felony sexual assault
upon his ex-wife's 12-year-old daughter was dismissed, on
respondent's motion, on the ground that he could be prosecuted only
for incest under state law, because the victim was his
stepdaughter. Respondent was then tried, convicted, and sentenced
upon a new information charging him with incest. On his appeal to
the Montana Supreme Court, it was discovered that, at the time of
the assault in question, the incest statute did not apply to sexual
assaults against stepchildren, and that the amended statute under
which respondent was tried had not become effective until after the
assault. After concluding that the conviction was void under the
Montana Constitution's
ex post facto law prohibition, the
court held that the Federal Constitution's Double Jeopardy Clause
prohibited retrial on the ground that sexual assault and incest are
the "same [offense] in law and fact,"
Brown v. Ohio,
432 U. S. 161,
432 U. S. 167,
n. 6. As an alternative ground of decision, the court noted that
respondent "was convicted of a crime which did not exist on the
date of the charged offense," and held that a retrial after such a
conviction also would subject respondent to double jeopardy.
Held: Although Montana's
ex post facto law
clause prevents the State from convicting respondent of incest, the
Double Jeopardy Clause does not prevent his trial on the related
charge of sexual assault, where his incest conviction was reversed
on grounds unrelated to guilt or innocence and there is no
suggestion that the evidence introduced at trial was insufficient
to convict him,
see Burks v. United States, 437 U. S.
1, and where the State originally sought to try him for
sexual assault, but, at his behest, tried him instead for incest.
Brown v. Ohio, supra, distinguished. Moreover, the Clause
does not forbid retrial because respondent was convicted of a
nonexistent crime, but, in fact, permits retrial after a conviction
is reversed because of a defect in the charging instrument. Under
the Montana court's reading of the sexual assault statute,
respondent's conduct apparently was criminal at the time he engaged
in it,
Page 481 U. S. 401
and, thus, the State simply relied on the wrong statute in its
second information.
Certiorari granted; 224 Mont. 187, 728 P.2d 1339, reversed and
remanded.
PER CURIAM.
In 1984, the State of Montana filed an information in the
Yellowstone County District Court charging respondent with felony
sexual assault in violation of Mont.Code Ann. § 455-502
(1981). The affidavit in support of the information indicated that
the assault took place during the summer of 1983, and that the
victim was the daughter of respondent's ex-wife. The victim was 12
years old at the time of the offense. Four days before trial,
respondent filed a motion to dismiss the information, arguing that,
because the victim was his stepdaughter, he could be prosecuted
only for incest, under Mont.Code Ann. § 45-5-507 (1983), not
sexual assault. Respondent argued that incest was merely a specific
instance of sexual assault, and that the Montana Legislature had
not intended incestuous acts to be subject to prosecution under the
more general sexual assault statute. On the morning of the trial,
the State District Court held a hearing and then granted the
motion. The State promptly filed a new information charging
respondent with incest, and proceeded to trial. A jury convicted
respondent. The judge sentenced respondent to 10 years'
imprisonment, but suspended 5 years of the sentence.
Respondent appealed his conviction to the Montana Supreme Court,
raising a number of claims not directly relevant to the issue
before this Court. One of respondent's claims was that he could not
lawfully be convicted of incest, because the victim was not his
stepdaughter within the meaning of the Montana incest statute. In
the course of considering this claim, the State discovered that, at
the time of the assault, the incest statute had not applied to
sexual assaults against stepchildren. The amended statute under
which respondent was tried had not become effective until
Page 481 U. S. 402
October 1, 1983, three months after the assault in question. On
March 6, 1986, the State filed a motion bringing this matter to the
attention of the Montana Supreme Court.
After briefing on the questions raised by the State's motion,
the Montana Supreme Court concluded that the conviction was void
because retroactive application of the amended statute would
violate the
ex post facto law prohibition of the Montana
Constitution, Art. II, § 31. It also held that the Double
Jeopardy Clause of the Fifth Amendment to the Federal Constitution
prohibited retrial of respondent. It stated that
"[i]f the offense charged in the second trial is the same in law
and fact as the offense charged in the first trial, the double
jeopardy clause prohibits successive trials."
224 Mont. 187, 190, 728 P.2d 1339, 1340 (1986) (citing
Brown
v. Ohio, 432 U. S. 161,
432 U. S. 167,
n. 6 (1977)). The court then analyzed the elements of sexual
assault and incest and concluded that they were the same offense
for double jeopardy purposes. Relying on this conclusion and
Brown v. Ohio, it held that the Double Jeopardy Clause
barred retrial. As an alternative ground of decision, it noted that
respondent "was convicted of a crime which did not exist on the
date of the charged offense." 224 Mont. at 192, 728 P.2d at 1342.
In the court's view, a retrial after a conviction for committing a
nonexistent crime also would subject respondent to double
jeopardy.
It is a "venerable principl[e] of double jeopardy jurisprudence"
that
"[t]he successful appeal of a judgment of conviction, on any
ground other than the insufficiency of the evidence to support the
verdict,
Burks v. United States,
[
437 U.S. 1
(1978)], poses no bar to further prosecution on the same
charge."
United States v. Scott, 437 U. S.
82,
437 U. S. 90-91
(1978).
See generally 3 W. LaFave & J. Israel,
Criminal Procedure § 24.4 (1984). Justice Harlan explained the
basis for this rule:
"Corresponding to the right of an accused to be given a fair
trial is the societal interest in punishing one whose
Page 481 U. S. 403
guilt is clear after he has obtained such a trial. It would be a
high price indeed for society to pay were every accused granted
immunity from punishment because of any defect sufficient to
constitute reversible error in the proceedings leading to
conviction. From the standpoint of a defendant, it is at least
doubtful that appellate courts would be as zealous as they now are
in protecting against the effects of improprieties at the trial or
pretrial stage if they knew that reversal of a conviction would put
the accused irrevocably beyond the reach of further prosecution. In
reality, therefore, the practice of retrial serves defendants'
rights as well as society's interest."
United States v. Tateo, 377 U.
S. 463,
377 U. S. 466
(1964).
See Burks v. United States, supra, at
437 U. S. 16.
Although Montana's
ex post facto law clause prevents
Montana from convicting respondent of incest, we see no reason why
the State should not be allowed to put respondent to a trial on the
related charge of sexual assault. There is no suggestion that the
evidence introduced at trial was insufficient to convict
respondent.
See Burks v. United States, supra. [
Footnote 1] Montana originally sought
to try respondent for sexual assault. At respondent's behest,
Montana tried him instead for incest. In these circumstances, trial
of respondent for sexual assault, after reversal of respondent's
incest conviction on grounds unrelated to guilt or innocence, does
not offend the Double Jeopardy Clause.
The principal federal authority relied on by the Montana Supreme
Court was our decision in
Brown v. Ohio, supra. The
petitioner in that case had been convicted of joyriding. After
serving a term of imprisonment on that conviction, he was charged
with auto theft. We concluded that the charges
Page 481 U. S. 404
of joyriding and theft punished a single offense, and thus that
retrial was impermissible. But the
Brown analysis is not
apposite in this case. [
Footnote
2] In
Brown, the defendant did not overturn the first
conviction; indeed, he served the prison sentence assessed as
punishment for that crime. Thus, when the State sought to try him
for auto theft, it actually was seeking a second conviction for the
same offense. By contrast, respondent in this case sought, and
secured, invalidation of his first conviction. This case falls
squarely within the rule that retrial is permissible after a
conviction is reversed on appeal.
The Montana court also suggested that the Double Jeopardy Clause
would forbid retrial because respondent was convicted of an offense
that did not exist when respondent had committed the acts in
question. But, under the Montana court's reading of the Montana
sexual assault statute, respondent's conduct apparently was
criminal at the time he engaged in it. If that is so, the State
simply relied on the wrong statute in its second information. It is
clear that the Constitution permits retrial after a conviction is
reversed because of a defect in the charging instrument.
E.g.,
United States v. Ball, 163 U. S. 662,
163 U. S. 672
(1896).
We grant Montana's petition for a writ of certiorari [
Footnote 3] and reverse the judgment of
the Montana Supreme Court. [
Footnote 4] The
Page 481 U. S. 405
case is remanded to that court for further proceedings not
inconsistent with this opinion.
It is so ordered.
JUSTICE BRENNAN would deny the petition for certiorari.
[
Footnote 1]
Nor was the jury's conviction of respondent on the charge of
incest an implied acquittal of the offense of sexual assault; there
would have been an implied acquittal only if the jury had been
presented with charges of both sexual assault and incest and had
chosen to convict respondent of incest.
See Green v. United
States, 355 U. S. 184
(1957).
[
Footnote 2]
We explicitly noted in
Brown that the case did not
raise "the double jeopardy questions that may arise . . . after a
conviction is reversed on appeal." 432 U.S. at
432 U. S. 165,
n. 6.
[
Footnote 3]
As JUSTICE STEVENS implicitly acknowledges, we have jurisdiction
over this petition under 28 U.S.C. § 1267(3). The Montana
court's decision "fairly appears to rest primarily on federal law,
or to be interwoven with the federal law," and "the adequacy and
independence of any possible state law ground is not clear from the
face of the opinion."
Michigan v. Long, 463 U.
S. 1032,
463 U. S.
1040-1041 (1983).
[
Footnote 4]
We express no opinion on the correctness, as a matter of federal
constitutional law, of the Montana Supreme Court's conclusion that
sexual assault and incest are the "same" offenses.
JUSTICE MARSHALL, dissenting.
For years, I have been troubled by our disposition of appeals
and petitions for certiorari through summary per curiam opinions,
without plenary briefing on the merits of the issues decided.
[
Footnote 2/1] Other Justices have
registered similar objections, disputing the Court's application of
the criteria that supposedly determine when a summary disposition
is clearly justified. [
Footnote
2/2] Our persistent indulgence in this practice over the
objections of our colleagues has tarnished what has long been
considered one of this judicial institution's greatest qualities,
the fairness and integrity of its decisionmaking process.
Through summary dispositions, we deprive the litigants of a fair
opportunity to be heard on the merits. Our Rules tell the
petitioner and respondent that we will grant review on
Page 481 U. S. 406
writ of certiorari "when there are special and important reasons
therefor." [
Footnote 2/3] In
listing the considerations that are important in deciding whether
review should be granted, we mention such things as conflicting
decisions from other courts and unsettled questions of federal law.
We do
not indicate that the parties should address the
merits of the lower court's decision beyond what is necessary to
demonstrate whether the case is important enough to receive plenary
review. [
Footnote 2/4] Our 30-page
limit for petitions and responses, and the command that they be "as
short as possible," [
Footnote 2/5]
unmistakably indicate that these papers should not contain detailed
discussions of the merits. If we find the case sufficiently
important, the Rules inform the parties that the petition will be
granted and "[t]he case then will stand for briefing and oral
argument." [
Footnote 2/6] Yet when
we issue a summary disposition, we ignore these instructions and
proceed to decide the case as if it has been fully briefed on the
merits. In my view, simply put, this is not fair. [
Footnote 2/7]
Admittedly, the Rules indicate that summary dispositions on the
merits are possible, [
Footnote 2/8]
but, in light of our instructions regarding the preparation of
petitions and responses, this places the litigants in a difficult
dilemma. If they venture
Page 481 U. S. 407
beyond arguments for granting or denying certiorari, they risk
violating the Rules; but if they fail to cover the merits of the
lower court's decision in full, they risk summary disposition
without having been heard. [
Footnote
2/9] In response to these pressures, counsel may tend to extend
their arguments in petitions and responses beyond the purposes
defined in the Rules. Apart from increasing the litigants' costs,
this tendency can only increase our workload, thereby giving those
who favor uncounseled summary dispositions additional justification
for not allowing full briefing on the merits. [
Footnote 2/10]
Not only do we reach these summary dispositions without the
benefit of thorough briefing, but the Court often acts without
obtaining the complete record of the proceedings below. Records are
no longer automatically certified and delivered to us for every
petition. [
Footnote 2/11] In
fact, we expressly discourage transmission of the record at this
stage of the proceedings, [
Footnote
2/12] which again indicates that the focus of certiorari is on
whether a case is important enough to warrant plenary review, and
not whether, after abbreviated review, we are able to conclude that
the case was rightly or wrongly decided below. Of course, we may
call for the record where we think a summary disposition might be
proper, and our Clerk notifies the parties of this development, but
we do not provide for supplemental briefing on the merits.
[
Footnote 2/13] All too often, as
in the case decided today, the Court does not even bother to
call
Page 481 U. S. 408
for the record. Again, counsel face a dilemma: they may
routinely request that records be transmitted, thus protecting the
interests of their clients at the risk of violating the Rules, or
they may fail to request transmission and risk summary disposition
based on less than complete review.
I cannot accept the proposition that additional briefing and
review of the full record will increase the workload of this Court
unbearably. Our duty to litigants today is to consider carefully
every petition and response filed in this Court. But our duty
extends to future litigants as well, and it is heightened when we
issue written opinions. To reduce the incidence of mistakes and to
avoid delivering conflicting or confusing opinions, our decisions
in these cases should be made only after we have had an opportunity
to consider comprehensive briefs and review the records in their
entirety. We are not infallible, as is evidenced, for example, by
the number of cases each Term that are dismissed
after
plenary briefing and oral argument as having been improvidently
granted. The time and effort required to read supplemental briefs
in cases for which we are considering summary dispositions would be
minimal, [
Footnote 2/14] and the
relative gains substantial.
More is at stake, however, than offsetting the litigants'
entitlement to be heard on the merits against our desires to avoid
increasing the workload. Summary dispositions often do not accord
proper respect for the judgments of the lower
Page 481 U. S. 409
courts, particularly when these judgments are reversed.
[
Footnote 2/15] The judges below
have had the benefit of full briefing on the merits and
review of the entire record. They must perceive -- correctly --
that our cavalier reversals are inherently less well-informed.
I believe, moreover, that summary dispositions in many instances
display insufficient respect for the views of dissenting colleagues
on
this Court. The tendency is to forget that we are
equally uninformed. What troubles a single Justice about a
particular case may become, after full briefing, a decisive factor
in the judgment of the Court. As it is, we forge ahead issuing per
curiam opinions as if the issue were crystal clear, at times over
objection from as many as four other Justices. [
Footnote 2/16] It is not unreasonable to believe,
as I do, that the integrity of a summary decision from a divided
Court would benefit from additional briefing on the merits by those
who have litigated the issues of the case from its inception.
"Per curiam" is a Latin phrase meaning "[b]y the court,"
[
Footnote 2/17] which should
distinguish an opinion of the
whole Court from an opinion
written by any one Justice. Our use of a lengthy per curiam
opinion, over the dissent of those who would set the case for
briefing, to resolve the merits of a case without devoting the
usual time or consideration to the issues presented, is wrong. Such
an opinion does not speak for the entire Court on a matter so clear
that the Court can and should speak with one voice. Instead, it
speaks for a majority of Justices who take it upon themselves to
resolve the merits of a dispute solely on the basis of preliminary
petitions and responses.
I can think of no compelling reason, and to date none has been
suggested, why we should nurture a practice that can
Page 481 U. S. 410
only foster resentment, uncertainty, and error. Rather, I
believe that, when the Court contemplates a summary disposition it
should, at the very least, invite the parties to file supplemental
briefs on the merits,
at their option. This simple
accommodation to the reasonable expectations of the litigants, to
the integrity of the lower courts, and to the desires of other
Justices for a more studied decision would go a long way toward
achieving the fairness and accuracy that the Nation rightfully
expects from its Court of last resort. Until this, or some other,
reasonable accommodation is implemented, I remain in dissent.
[
Footnote 2/1]
See, e. g, Allen v. Hardy, 478 U.
S. 255,
478 U. S. 261
(1986) (MARSHALL, J., dissenting);
Maggio v. Fulford,
462 U. S. 111,
462 U. S. 120
(1983) (MARSHALL, J., dissenting);
Griggs v. Provident Consumer
Discount Co., 459 U. S. 56,
459 U. S. 62
(1982) (MARSHALL, J., dissenting);
Wyrick v. Fields,
459 U. S. 42,
459 U. S. 50
(1982) (MARSHALL, J., dissenting);
Harris v. Rivera,
454 U. S. 339,
454 U. S. 349
(1981) (MARSHALL, J., dissenting);
Schweiker v. Hansen,
450 U. S. 785,
450 U. S. 791
(1981) (MARSHALL, J., dissenting);
Harris v. Rosario,
446 U. S. 651,
446 U. S. 652
(1980) (MARSHALL, J., dissenting);
Smith v. Arkansas State
Highway Employees, 441 U. S. 463,
441 U. S. 466
(1979) (MARSHALL, J., dissenting).
[
Footnote 2/2]
See, e.g., Board of Education of Rogers, Ark. v.
McCluskey, 458 U. S. 966,
458 U. S.
971-972 (1982) (STEVENS, J., dissenting);
United
States v. Hollywood Motor Car Co., 458 U.
S. 263,
458 U. S. 271
(1982) (BLACKMUN, J., dissenting);
Hutto v. Davis,
454 U. S. 370,
454 U. S. 387
(1982) (BRENNAN, J., dissenting);
Stone v. Graham,
449 U. S. 39,
449 U. S. 47
(1980) (REHNQUIST, J., dissenting);
Oregon State Penitentiary
v. Hammer, 434 U. S. 945, 947
(1977) (STEVENS, J., dissenting);
Eaton v. Tulsa,
415 U. S. 697,
415 U. S. 707
(1974) (REHNQUIST, J., dissenting);
cf. Shipley v.
California, 395 U. S. 818,
395 U. S. 821
(1969) (WHITE, J., dissenting).
[
Footnote 2/3]
This Court's Rule 17.1.
[
Footnote 2/4]
At our direction, the respondent focuses instead on "disclosing
any matter or ground why the cause should not be reviewed." Rule
22.1.
[
Footnote 2/5]
Rules 21.4 and 22.2. In this case, petitioner devoted 12 pages
to the merits of the double jeopardy issue decided by the Court
today, respondent only 7. Pet. for Cert. 10-21; Respondent's Brief
in Opposition 8-14. An
amicus curiae brief submitted on
behalf of 17 States devoted a total of five pages to the merits.
Brief for the States and Commonwealths of Indiana
et al.
as
Amici Curiae 2-6.
[
Footnote 2/6]
Rule 23.2.
[
Footnote 2/7]
This lack of fairness has not escaped the notice of
commentators.
See, e.g., E. Brown, The Supreme Court 1957
Term -- Forward: Process of Law, 72 Harv.L.Rev. 77, 80, 82, (1958);
R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice
284-285 (6th ed.1986).
[
Footnote 2/8]
Rule 23.1. This Rule was not codified until 1980. Stern,
Gressman, & Shapiro, Supreme Court Practice,
supra, at
277.
[
Footnote 2/9]
Cf. United States v. Hollywood Motor Car Co., supra, at
458 U. S. 271
(BLACKMUN, J., dissenting).
[
Footnote 2/10]
See Hutto v. Davis, supra, at
454 U. S. 387,
n. 6 (BRENNAN, J., dissenting); Stern, Gressman, & Shapiro,
Supreme Court Practice,
supra, at 286.
[
Footnote 2/11]
See generally Stern, Gressman, & Shapiro, Supreme
Court Practice,
supra, at 329-333.
[
Footnote 2/12]
Rule 19.1.
[
Footnote 2/13]
A party may, at any time, file a supplemental brief not
exceeding 10 pages, but these briefs can only address a "new
matter" not available at the time of the party's last filing. Rule
22.6. This Rule does not envision supplemental briefing when the
Court calls for the record.
See also Rule 21.3
(supplemental brief in support of petition will not be
received).
[
Footnote 2/14]
To put matters in perspective, were we to shorten the acceptable
length of petitions and responses merely by one-fifth of a single
page, it would free up at least 2,000 pages worth of our reading
time to consider full briefs for the relatively few summary
dispositions we issue each year. That comes to 40 briefs, at 50
pages each, or 20 cases decided in which the parties and the Court
would have the benefit of full briefing. This assumes that 5,000
petitions are filed each year, and that, on the average, litigants
use the complete 30 pages allowed. The former assumption is
conservative and is a matter of record; based on my personal
observation, the latter assumption is more than fair.
[
Footnote 2/15]
See, e.g., Stone v. Graham, 449 U.S. at
499 U. S. 47
(REHNQUIST, J., dissenting);
Oregon State Penitentiary v.
Hammer, 434 U.S. at 947 (STEVENS, J., dissenting).
[
Footnote 2/16]
See, e.g., Newport v. Iacobucci, 479 U. S.
92 (1986).
[
Footnote 2/17]
Black's Law Dictionary 1023 (5th ed.1979) (emphasis added).
JUSTICE STEVENS, dissenting.
"Respect for the independence of state courts, as well as
avoidance of rendering advisory opinions, have been the
cornerstones of this Court's refusal to decide cases where there is
an adequate and independent state ground."
Michigan v. Long, 463 U. S. 1032,
463 U. S.
1040 (1983).
Perhaps the Court is correct in assuming that the decision of
the Supreme Court of Montana does not rest on an adequate and
independent state ground. Nevertheless, it is worthy of note that
the state court expressly relied on Article II, § 25, of the
Montana Constitution, [
Footnote
3/1] and cited four decisions of the Montana Supreme Court in
support of its double jeopardy holding. [
Footnote 3/2] Furthermore, after concluding that "the
double jeopardy clause prohibits [respondent's] retrial," 224 Mont.
187, 192, 728 P.2d 1339, 1342 (1986), the Montana court advanced an
alternative ground for its decision that is supported only by the
Montana case of
State v. Hembd, 197 Mont. 438, 643 P.2d
567 (1982), namely that retrial would be impermissible because
respondent was convicted of an offense
Page 481 U. S. 411
that did not exist when he committed the acts in question; this
state law doctrine has no federal counterpart of which I am
aware.
My respect for the independence of state courts, as well as the
desirability of not rendering opinions that may turn out to be
wholly advisory, therefore persuades me that the Court's summary
disposition is unwise.
See, e.g., People v. P. J. Video,
Inc., 68 N.Y.2d 296, 501 N.E.2d 556 (1986) (declining to
follow
New York v. P. J. Video, Inc., 475 U.
S. 868 (1986)),
cert. denied, 479 U.S. 1091
(1987);
Commonwealth v. Upton, 394 Mass. 363,
476
N.E.2d 548 (1985) (declining to follow
Massachusetts v.
Upton, 466 U. S. 727
(1984));
Bellanca v. New York State Liquor Authority, 54
N.Y.2d 228, 429 N.E.2d 765 (1981) (declining to follow
New York
State Liquor Authority v. Bellanca, 452 U.
S. 714 (1981)),
cert. denied, 456 U.S. 1006
(1982);
State v. Opperman, 247
N.W.2d 673 (S.D.1976) (declining to follow
South Dakota v.
Opperman, 428 U. S. 364
(1976)).
I would simply deny Montana's petition for a writ of
certiorari.
[
Footnote 3/1]
Article II, § 25, of the Montana Constitution provides: "No
person shall be again put in jeopardy for the same offense
previously tried in any jurisdiction."
[
Footnote 3/2]
State v. Lindseth, 203 Mont. 115, 659 P.2d 844 (1983);
State v. Wells, 202 Mont. 337, 658 P.2d 381 (1983);
State v. Hembd, 197 Mont. 438, 643 P.2d 567 (1982);
State v. Parmenter, 112 Mont. 312, 116 P.2d 879
(1941).
