standing principle that a defendant may not be retried
after acquittal even if the legal ruling underlying the
acquittal was clearly erroneous, because an acquittal is “a
resolution, correct or not, of some or all of the factual
elements of the offense charged.” The Court expressly
held that defendant did not waive his double jeopardy
rights by moving for acquittal during trial.
In State v. Barnes, 84 N.J. 362 (1980), the New
Jersey Supreme Court followed Scott, holding that where
proceedings against an accused are terminated during
trial on a basis unrelated to factual guilt or innocence, the
State may appeal from a ruling of the trial court in favor
of the defendant. The trial court had reversed municipal
court convictions of defendants in a trial de novo where the
sole issue was the constitutionality of the ordinance
under which defendants had been found guilty. The
Supreme Court found that the constitutional
determination did not involve factual guilt or innocence
and held that an appeal by the State of the constitutional
determination did not offend established principles of
double jeopardy.
In State v. Costello, 224 N.J. Super. 157 (App. Div.
1988), defendant was convicted of two separate counts of
driving while intoxicated for offenses which had occurred
within a two hours of each other. After defendant was
arrested for the first of the offenses, he was released, and
while driving home, defendant was again stopped by the
police and again charged with driving while intoxicated.
On appeal de novo, the court found that the second
offense was part of the “same offense” and acquitted
defendant of the second offense. Although the acquittal
of the second offense was later found to be erroneous, the
Appellate Division held that the principles of double
jeopardy barred the appeal which sought to reinstate the
second offense after acquittal.
E. Dismissals After Verdict
A dismissal after a jury verdict or a finding of guilt by
the court in a bench trial is appealable, and, therefore, the
case can be retried. United States v. Kopp, 429 U.S. 121,
97 S.Ct. 400, 50 L.Ed.2d 336 (1976); United States v.
Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976);
United States v. Rose, 429 U.S. 5, 97 S.Ct. 26, 50 L.Ed.2d
5 (1976) (bench trial); United States v. Wilson, 420 U.S.
332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (jury
verdict); State v. Kleinwaks, 68 N.J. 328 (1975).
F. Reversal on AppealA retrial may follow reversal on appeal except when
the reversal is based on insufficient evidence to support
the conviction. Burks v. United States, 437 U.S. 1, 98
S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437
U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); see also
State v. Lynch, 79 N.J. 327 (1979).In State v. Tropea, 78 N.J. 309 (1978), defendant’s
conviction for speeding was reversed because the State
failed to prove the speed limit and the evidence was
insufficient to sustain the conviction. Defendant argued
that double jeopardy prohibited retrial, and the State
countered by asserting this proceeding was neither
criminal nor quasi-criminal in nature, and thus, double
jeopardy did not apply. The Court avoided the issue,
holding instead that “considerations of fundamental
fairness militated against retrial.” The Court suggested
that there may be some circumstances which would
warrant application of double jeopardy protections to
motor vehicle offense proceedings. Five years later in State
v. Dively, 92 N.J. 573, 586 (1983), the Court expressly
held that double jeopardy protections apply to motor
vehicle offenses.Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95
L.Ed.2d 354 (1987), held the Double Jeopardy Clause
does not bar retrial after a conviction is reversed because
of a defect in the charging instrument. The state court’s
reversal of defendant’s conviction was not on grounds
related to guilt or innocence but on grounds of a defective
instrument. Defendant’s retrial was not for an offense of
which he had already been convicted and punished.In State v. Williams, 226 N.J. Super. 94 (App. Div.
1988), the trial court’s improper receipt of evidence was
a mere trial error for double jeopardy purpose, and
defendant could be retried after reversal of original
conviction. The appellate court need not determine
whether, without the improperly admitted evidence, the
balance of evidence was sufficient to sustain defendant’s
conviction.In State v. Dohme, 223 N.J. Super. 485 (App. Div.
1988), defendant was convicted of driving while under
the influence. Defendant appealed on the ground that
prerequisites to the admission of the breathalyzer results
had not been established before the results were admitted
into evidence. The Appellate Division ruled that the
prerequisites must be satisfied before the breathalyzer
results can be admitted against defendant, and ordered a
new hearing. The Court noted, however, that double