Published on: Thursday, December 7, 2017

The Double Jeopardy Clause of the Fifth Amendment states no person shall “be subject to the same offense to be twice put in jeopardy.”  Although the Supreme Court has adopted bright line rules to determine when the protection against double jeopardy attaches in jury trials, i.e., when the jury is empaneled and sworn, the Court has not determined that point for guilty pleas.  As a result, there is a long-standing circuit split about when double jeopardy protections kick in after a guilty plea which has also divided the state courts.  A pending certiorari petition asks the court to decide “[w]hether the Fifth Amendment’s protection from double jeopardy attaches when the court accepts a defendant’s guilty plea.” Stone v. Montana, No. 16-790 (U.S. Nov. 6, 2017) (cert. petition filed).

Five Circuits (the Second, Fifth, Sixth, Ninth, and Eleventh) and a number of state courts that have considered the issue have concluded that jeopardy attaches when a court accepts a guilty plea.   See United States v. McIntosh, 580 F.3d 1222 (11th Cir. 2009) (“The acceptance of [the defendant’s] unconditional plea of guilt … constituted convictions,” because “[l]ike a verdict of a jury it is conclusive .... [T]he court has nothing to do but give judgment and sentence.”); United States v. Patterson, 381 F.3d 859 (9th Cir. 2004); See United States v. Ursery, 59 F.3d 568, 572 (6th Cir. 1995), reversed on other grounds, 518 U.S. 267 (1996); United States v. Sanchez, 609 F.2d 761, 762 (5th Cir. 1980); United States v. Cambindo Valencia, 609 F.2d 603, 637 (2d Cir. 1979); see also, e.g., Peiffer v. State, 88 S.W.3d 439, 444 (Mo. 2002); State v. McAlear, 519 N.W.2d 596, 599 (S.D. 1994).

On the other side, the First and Third Circuit, and at least four state courts, have held that double jeopardy does not attach when a court accepts a guilty plea.  See United States v. Santiago Soto, 825 F.2d 616, 620 (1st Cir. 1987)(“The mere acceptance of a guilty plea does not carry the same expectation of finality and tranquility that comes with a jury’s verdict or with an entry of judgment and sentence.”); Gilmore v. Zimmerman, 793 F.2d 564, 571 (3d Cir. 1986); see also, e.g., State v. Stone, 400 P.3d 692 (Mt. 2017) (“In order for there to be a conviction based on a guilty plea [for double jeopardy], a judgment or sentence must be imposed); ( State v. Thomas, 995 A.2d 65, 72-79 (Conn. 2010) (noting the split and that the “United States Supreme Court has yet to decide when jeopardy attaches in a case disposed of by a guilty plea,” and concluding that “the acceptance of a guilty plea is legally different from a conviction based on a jury’s verdict, and, therefore, [] jeopardy does not necessarily attach automatically upon the acceptance of a guilty plea ….”); State v. Angel, 51 P.3d 1155, 1159 (N.M. 2002); Myers v. Frazier, 319 S.E.2d 782, 798 (W. Va. 1984).

The Training Division provides resource materials about pleas here.