Original jeopardy continues until criminal proceed-
ings have “run their full course.” Price v. Georgia, 398
U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300, (1970); see
also Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57
L.Ed.2d 705 (1978). The Supreme Court has
emphasized this concept of continuing jeopardy, while
rejecting double jeopardy claims. In Justices of Boston
Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805,
80 L.Ed.2d 311 (1984), the Court rejected a habeas
petitioner’s claim that jury trial de novo following a bench
trial conviction under the Massachusetts two-tier trial
system used for the prosecution of certain minor crimes
violated double jeopardy principles when the evidence
presented at the bench trial was insufficient to support a
finding of guilt. The Court found that following his
bench trial the petitioner was in continuing jeopardy and
thus would not be placed in double jeopardy by trial de
novo even if there was insufficient evidence to convict at
the bench trial.
Similarly, in Richardson v. United States, 468 U.S.
317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), the Court
held that the failure of a jury to reach a verdict does not
terminate the original jeopardy. The Court held that,
regardless of the sufficiency of evidence at a first trial,
retrial is permitted when the jury is discharged because
it is unable to agree.
In State v. Ortiz, 202 N.J. Super. 233 (App. Div.
1985), however, “continuing jeopardy” concepts did not
come into play. At the conclusion of the State’s case, the
trial judge erroneously granted the defendant’s motion,
on sufficiency grounds, for judgments of acquittal with
respect to two of four counts in the indictment.
Ultimately, a jury verdict on the “dismissed counts” was
permitted by an interlocutory order; the jury never was
dismissed pending the interlocutory process; and the
trial court truly erred in its original decision.
Nevertheless, the Appellate Division held that the trial
court’s dismissal based on “insufficiency,” was a
judgment of acquittal which on double jeopardy grounds
foreclosed the jury’s subsequent conviction of defendants
for these offenses. Accord, State v. Portock, 205 N.J. Super.
499 (App. Div. 1985), certif. denied, 105 N.J. 579
(1986).
Under New Jersey statutes governing dismissals of
prosecutions on grounds similar to those implicated by
double jeopardy, each case depends on its facts rather
than on the simpler but more rigid determination of
when jeopardy attaches. State v. Carson, 192 N.J. Super.
612 (Law Div. 1983).
In State v. Loyle, 208 N.J. Super. 334 (App. Div.
1986), certif. denied, 109 N.J. 40 (1987), the defendant
was indicted for causing death by automobile, in
violation of N.J.S.A. 2C:11-5. Defendant pleaded not
guilty to the indictment. Then, defendant pleaded
guilty to motor vehicle complaints filed in municipal
court, and was fined. Since the complaints arose out of
the same incident which resulted in the indictment,
defendant moved for a dismissal of the indictment on
double jeopardy grounds. The trial court denied the
motion. On appeal, the Court distinguished Dively,
because when defendant entered his guilty plea here, all
of the prosecutions were pending simultaneously and
only one was terminated by the guilty plea. Defendant
had not been exposed to guilt on the indictable charge to
which he had pleaded not guilty nor had he received an
implied acquittal on a more serious offense by being
convicted on a lesser charge.In State v. Boyer, 221 N.J. Super. 387 (App. Div.
1987), certif. denied, 110 N.J. 299 (1988), the defendant
was convicted of various offenses including felony murder
and possession of a weapon for an unlawful purpose.
During jury selection, defendant’s address had not been
revealed to potential jurors. After the jury was selected,
however, one of the jurors discovered that he lived on the
same street as defendant. After the juror indicated that
this fact might affect his ability to be fair, the court
removed the juror for cause and jury selection was
reopened by the court, whereupon a new juror was
selected. The Appellate Division concluded that
replacing a juror with a new juror after opening
statements had been given did not violate double
jeopardy since no evidence had been introduced and the
court reporter read the opening statements to the new
juror.In N.J. State Parole Board v. Mannson, 220 N.J. Super.
566 (App. Div. 1987), the defendant, while on parole,
was charged with violating the conditions of his parole. A
final revocation hearing was scheduled, but defendant’s
supervising parole officer did not appear for the
proceedings, and the hearing officer adjourned the
hearing after it had begun. The Parole Board
subsequently ordered a second revocation hearing, and at
the reconvened hearing, defendant’s parole was revoked.
On appeal, defendant argued that the second hearing
violated his constitutional protection against double
jeopardy. The Appellate Division affirmed the parole
board’s finding that double jeopardy protection does not
apply to parole revocation proceedings, since such a
hearing is an administrative proceeding designed to
determine whether a parolee has violated the conditions