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The Florida Bar

Double Jeopardy

Fort Lauderdale criminal lawyers should be well versed on the law pertaining to double jeopardy.

The double jeopardy clause of the Fifth Amendment provides: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The concept of double jeopardy prohibits the retrial of a defendant who has been convicted or acquitted of the same offense at a previous trial. It also protects against multiple punishments for the same offense.

Fort Lauderdale criminal lawyers should also be well aware of the history evolving of the rule. The most basic of historical synopsis would be that double jeopardy was originally an affirmative defense that was waived if not raised by the defendant prior to verdict. However, the requirement that the defendant formally plead the defense of double jeopardy may no longer be valid in all circumstances in light of Menna v. New York. In Menna, the U.S. Supreme Court held that “a plea of guilty to a charge does not waive a claim that judged on its face—the charge is one which the State may not constitutionally prosecute.” On the other hand, United States v. Broce held that a collateral attack based on double jeopardy grounds was barred because the defendant entered a voluntary plea of guilty and failed to raise the double jeopardy issue at trial. In the absence of further clarification from the courts, the only “safe” course for the defendant is to raise a double jeopardy claim prior to the judge or jury returning a verdict.

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