In The

Supreme Court of the United States

Commissioner, Mississippi Department of Corrections, et al.



Decided June 27, 1984

Justice O’Connor, Dissenting

Topic: Criminal Procedure*Court vote: 6–3
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Joining O'Connor opinion: Justice POWELL Justice POWELL
Citation: 468 U.S. 27 Docket: 82–1330Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom JUSTICE POWELL joins, dissenting.

For the reasons stated in JUSTICE REHNQUIST's dissent, I believe the Court should address the double jeopardy question decided by the Court of Appeals. I also agree with JUSTICE REHNQUIST that the Court of Appeals' ruling should be vacated and the case remanded for further consideration in light of Blackledge v. Perry, 417 U. S. 21 (1974). In my view, however, the Court of Appeals' double jeopardy holding should be vacated simply on the ground that jeopardy does not attach in the first tier of a "two-tier" criminal trial.

Two-tier systems for adjudicating less serious criminal cases such as traffic offenses are extremely common. Colten v. Kentucky, 407 U. S. 104, 407 U. S. 112, n. 4 (1972). Indeed, this is our second occasion this Term to review double jeopardy problems arising out of a two-tier trial. See Justices of Boston Municipal Court v. Lydon, 466 U. S. 294 (1984). Mississippi's two-tier system is fairly typical. A defendant convicted in a Mississippi justice of the peace court has an absolute right to a trial de novo if he chooses to appeal his conviction. See Calhoun v. City of Meridian, 355 F.2d 209, 211 (CA5 1966); Miss.Code Ann. § 99-35-1 et seq. (1972). In Mississippi, as in Kentucky,

a defendant can bypass the inferior court simply by pleading guilty and erasing immediately thereafter any consequence that would otherwise follow from tendering the plea.

Colten v. Kentucky, supra, at 407 U. S. 119 -120.

In these circumstances, a defendant is not in "jeopardy" of anything when he undergoes a first-tier trial. The first-tier proceedings

offer a defendant the opportunity to learn about the prosecution's case and, if he chooses, he need not reveal his own.... In reality, his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the [second-tier trial,] with sentence to be determined by the full record made in that court.

407 U.S. at 407 U. S. 118 -119.

Respondent Roberts chose not to accept the "offer in settlement" made at his first-tier trial. On August 13, 1977, he was convicted in the first-tier trial and sentenced to pay a fine of $100 on the charge of reckless driving. He filed notice of and perfected an appeal on the same day. The reckless driving misdemeanor charge was eventually consolidated for trial with the manslaughter charge, but was not prosecuted further. There is no indication that Roberts ever paid the $100 fine. At oral argument, counsel conceded that he probably did not.

This is surely dispositive evidence that Roberts was never in "jeopardy" at his first-tier trial. Though he was tried, convicted, and sentenced at that trial, he effortlessly erased his conviction and suffered no punishment whatsoever for the offense of reckless driving. If Roberts was never in jeopardy at his first-tier trial, the second trial could in no circumstance violate Roberts' constitutional right to avoid being placed twice in jeopardy for the same offense.

Accordingly, I would vacate the judgment below and remand for further consideration in light of Blackledge v. Perry, supra.

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