of parole, not a proceeding designed to punish a criminal
defendant for violation of a criminal law.
Finally, with respect to a defendant’s double
jeopardy interest in the finality of his sentence, the
general rule is that jeopardy attaches once the defendant
has begun to serve his sentence. State v. Ryan, 86 N.J. 1,
10 (1981); State v. Dively, 92 N.J. 573, 588 & n.9
(1983). Nevertheless, it warrants emphasis that a
defendant’s double jeopardy interest in the finality of his
sentence, once he has been convicted, differs from his
double jeopardy interest in avoiding retrial after he has
been acquitted or convicted. State v. Dively, supra. For
example, although double jeopardy would foreclose the
State from appealing a verdict of acquittal, double
jeopardy does not foreclose the State from appealing a
sentence which it alleges to be too lenient, even though
the sentence has been partially served, so long as the
legislature has enacted a statute authorizing such an
appeal. State v. Roth, 95 N.J. 334, 344-345 (1984);
United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct.
426, 66 L.Ed.2d 328 (1980); Pennsylvania v.
Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d
183 (1985).
In State v. Cuneo, 275 N.J. Super. 12 (App. Div.
1994), the Appellate Division held that where a
defendant charged with DWI and other motor vehicle
offenses submits to a trial in municipal court on the sole
issue of operation of the motor vehicle, an adjudication of
non-operation is tantamount to a judgment of acquittal,
and the State is prevented by the doctrine of double
jeopardy from appealing the determination and retrying
the defendant. While the State attempted to characterize
the municipal proceeding as a probable cause hearing,
the Appellate Division stated that it is the substance of
the hearing and not the label which controls. Since the
purpose of the hearing was to determine if the defendant
drove the vehicle, the proceeding concerned an element
of the offense which the State failed to establish.
Therefore, jeopardy attached and the defendant cannot
be retried for any of the offenses charged in which
operation of the vehicle is an element.
III. RETRIAL PROHIBITED
A. Acquittals During Trial
Fong Foo v. United States, 369 U.S. 141, 82 S.Ct.
671, 7 L.Ed.2d 629 (1962), held that once the defendant
has been acquitted, no matter how “egregiously
erroneous” the legal rulings leading to the judgment of
acquittal might be, there is no exception to the
constitutional rule forbidding successive trials for the
same offense. In this case, the court of appeals held that
the district court had erred in various rulings and lacked
power to direct a verdict of acquittal before the
Government rested its case. The Supreme Court
accepted the holding of the court of appeals that the
district court had erred, but found nevertheless that the
Double Jeopardy Clause was violated when the court of
appeals set aside the judgment of acquittal and directed
that defendants be tried again for the same offense.In State v. Lynch, 79 N.J. 327 (1979), the trial judge
prematurely and erroneously dismissed the charge of
accessory-after-the-fact when the State’s opening
statement failed to assert an essential element of the
crime. The Court held that once an acquittal resolves the
factual elements of a crime charged, correctly or not,
double jeopardy prevents a new trial for the same offense.
Accord, State v. Portock, 205 N.J. Super. 499 (App. Div.
1985), certif. denied, 105 N.J. 579 (1985); see also State
v. Stamberger, 209 N.J. Super. 579 (Law Div. 1985)
(purpose of opening statement merely to advise jury of
facts in the case and prepare jury for questions it will face).Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct.
1745, 90 L.Ed.2d 116 (1986). The trial court sustained
a demurrer filed by defendants at the close of the State’s
case, saying that it was not satisfied that there was
sufficient evidence from which it could conclude that
either of the two defendants was guilty beyond a
reasonable doubt. The State appealed. The United
States Supreme Court concluded that a grant of demurrer
at the close of the State’s case in chief at a bench trial
constitutes an acquittal for double jeopardy purposes.
Also, whether the case is tried to a jury or to the bench,
the Double Jeopardy Clause bars a post-acquittal appeal
by the State whenever reversal might result in a second
trial or would subject defendant to further fact-finding
proceedings as to his guilt or innocence.In a per curiam opinion the Supreme Court affirmed
the majority Appellate Division opinion, State v.
Blacknall, 288 N.J. Super. 466 (App. Div. 1995), aff’d
143 N.J. 419 (1996), reversing defendant’s first degree
kidnaping conviction on double jeopardy grounds. Once
defendant testified, the trial court could not reinstate the
first degree charge after ruling at the close of the State’s
case that it would not charge that offense because of proof
failure. In essence, the trial judge’s decision not to
charge, even if mistaken, acted as an acquittal that
triggered jeopardy.