State v. Monticello Developers, Inc.

527 N.E.2d 1111, 1988 Ind. LEXIS 290, 1988 WL 92678

• Court: Indiana Supreme Court
• Decided: September 2, 1988
• Docket: No. 18S02-8711-CR-1099
• Status: Published

Opinions

SHEPARD, Chief Justice.

Appellee Monticello Developers, Inc. was tried before a jury, which returned a guilty verdict. The trial court granted Monticello's post-verdict motion for judgment on the evidence and entered judgment for defendant. On the State's appeal, the Court of Appeals reversed because that the trial court had applied an incorrect legal standard in granting judgment on the evidence. It found that the jury's verdict was supported by sufficient evidence, and remanded the case for reinstatement of the jury's verdict. State v. Monticello Developers, Inc. (1987), Ind.App., 502 N.E.2d 927.

On transfer, this Court determined that the trial court's judgment, though erroneous, was an acquittal on the evidence and that re-entry of the conviction was barred by the double jeopardy clause. State v. Monticello Developers, Inc. (1987), Ind., 515 N.E.2d 1070. While we reaffirm the conclusion that the trial court's erroneous judgment was an acquittal, the State's petition for rehearing has caused us to re-examine the ultimate disposition of this case.

The State cites several United States Supreme Court cases in support of its contention that remand does not constitute double jeopardy because Monticello would not be exposed to a second trial. Remand would merely involve reinstatement of the jury's verdict. The Supreme Court cases are not directly on point, however, because that Court has never decided a case involving an acquittal on the evidence following a jury verdict of guilty.

The State cites United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the only case to consider the double jeopardy effects of a post-verdict judgment. After the jury returned a verdict of guilty, judgment was entered for Wilson 'because of prejudicial pre-indictment delay. While the Court found no double jeopardy violation in the appeal¹, there was no acquittal on the evidence. The proceedings were terminated on grounds unrelated to factual guilt or innocence. See also United States v. Scott, 437 U.S. 82, 98-99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 71 (1978).

Wilson does not control in this case because the judgment here was entered on the trial court's conclusion that the evidence did not support a conviction. The proceedings were not terminated on a legal claim but on grounds directly related to the defendant's guilt or innocence.

The Supreme Court has consistently found double jeopardy violations on governmental appeals from an acquittal on the evidence. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). These double jeopardy violations occurred, however, in cases where no jury verdict had been returned. See id.; Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) United States v. Martin Linen Supply, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). Thus, the Supreme Court has not been confronted with a case involving both a post-verdict acquittal on the evidence and a prior jury verdict.

Our survey of federal circuits reveals that several have addressed cases in which the government has appealed an acquittal on the evidence following a jury verdict of guilty." In these cases, the circuits concluded that the double jeopardy clause does not bar appeal where reversal of the lower court order would not subject the defendant to a new trial but would result only in reinstating the jury's verdict United States v. Cardenas, 748 F.2d 1015, 1023 (5th Cir.1984); United States v. Dixon, 658 F.2d 181, 187 (3rd Cir.1981); United States v. Brandon, 633 F.2d 773, 778-779 (9th Cir.1980); United States v. Woodruff, 600 F.2d 174, 175 (8th Cir.1979); United States v. Forcellati, 610 F.2d 25, 29 (1st Cir.1979), cert. denied, 445 U.S. 944, 100 S.Ct. 1342, 63 L.Ed.2d 778.

The conclusion reached by the circuits is consistent with the purpose of the double jeopardy clause, which is primarily "directed at the threat of multiple prosecutions...." Wilson, 420 U.S. at 342, 95 S.Ct. at 1021, 43 L.Ed.2d at 241. "The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to con-viet an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957).

Here, the State would not be afforded another opportunity to prove its case against Monticello. Because of the exist ing jury verdict, a second trial is not necessary. Monticello argues that appellate review of the sufficiency of the evidence constitutes exposure to further fact-finding. A review of a trial court decision does not violate the double jeopardy clause. Factual findings are not made, as the reviewing court is limited to a review of the record. Dizon, 658 F.2d at 188.

Because Monticello will not be exposed to a second trial or further fact-finding proceedings of any kind, remand of the case for sentencing on the jury's verdict does not violate the double jeopardy clause. Because the appeal does not seek review on issues of fact but only on the legal question of sufficiency, the State may seek review and remedy under Ind. Code § 35-88-4-2.

We grant the State's petition for rehearing and remand to the trial court to enter judgment on the jury verdict of guilty and proceed accordingly.

GIVAN, PIVARNIK and DICKSON, JJ., concur. DeBRULER, J., dissents with opinion.

1 . Double jeopardy is a jurisdictional question in federal courts. Governmental appeals "where the double jeopardy clause of the United States Constitution prohibits further prosecution" are statutorily excluded from federal jurisdiction. 18 U.S.C. § 3731 (1985).