MONTANA v. HALL
No. 86-1381.
Decided April 27, 1987
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. § 45-5-502 (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 October 1, 1983, three months after the assault in question. On March 5, 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, 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 principle] 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, 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 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. Toteo, 377 U. S. 463, 466 (1964).
See Burks v. United States, supra, at 15.
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. 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 of joyriding and theft punished a single offense, and thus that retrial was impermissible. But the Brown analysis is not apposite in this case. 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, 672 (1896).
We grant Montana’s petition for a writ of certiorari and reverse the judgment of the Montana Supreme Court. The 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.
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).
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 165, n. 5.
As Justice Stevens implicitly acknowledges, we have jurisdiction over this petition under 28 U. S. C. § 1257(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, 1040-1041 (1983).
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.
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