Syllabus

BROWN v. OHIO

CERTIORARI TO THE COURT OF APPEALS OF OHIO,
CUYAHOGA COUNTY

No. 75-6933. Argued March 21, 1977-Decided June 16, 1977

The Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth, held to bar prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent. Pp. 164-170.

(a) "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not," Blockburger v. United States, 284 U. S. 299, 304. In line with that test, the Double Jeopardy Clause generally forbids successive prosecution and cumulative punishment for a greater and lesser included offense. Pp. 166-169.

(b) Here, though the Ohio Court of Appeals properly held that under state law joyriding (taking or operating a vehicle without the owner's consent) and auto theft (joyriding with the intent permanently to deprive the owner of possession) constitute "the same statutory offense" within the meaning of the Double Jeopardy Clause, it erroneously concluded that petitioner could be convicted of both crimes because the charges against him had focused on different parts of the 9-day interval between petitioner's taking of the car and his apprehension. There was still only one offense under Ohio law, and the specification of different dates in the two charges against petitioner cannot alter the fact that he was twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Pp. 169-170.

Reversed.

POWELL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 170. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 170.

Robert Plautz, by appointment of the Court, 429 U. S. 997,

argued the cause for petitioner. With him on the briefs was Glenn Billington.

George J. Sadd argued the cause for respondent. With him on the briefs was John T. Corrigan.

MR. JUSTICE POWELL delivered the opinion of the Court. The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent.

I

On November 29, 1973, the petitioner, Nathaniel Brown, stole a 1965 Chevrolet from a parking lot in East Cleveland, Ohio. Nine days later, on December 8, 1973, Brown was caught driving the car in Wickliffe, Ohio. The Wickliffe police charged him with "joyriding"-taking or operating the car without the owner's consent-in violation of Ohio Rev. Code Ann. § 4549.04 (D) (1973, App. 342).1 The complaint charged that "on or about December 8, 1973, . . . Nathaniel H. Brown did unlawfully and purposely take, drive or operate a certain motor vehicle to wit; a 1965 Chevrolet . . . without the consent of the owner one Gloria Ingram App. 3. Brown pleaded guilty to this charge and was sentenced to 30 days in jail and a $100 fine.

Upon his release from jail on January 8, 1974, Brown was returned to East Cleveland to face further charges, and on February 5 he was indicted by the Cuyahoga County grand jury. The indictment was in two counts, the first charging

1 Section 4549.04 (D) provided at the time: "No person shall purposely take, operate, or keep any motor vehicle without the consent of its owner." A violation was punishable as a misdemeanor. Section 4549.04 was repealed effective January 1, 1974.

the theft of the car "on or about the 29th day of November 1973," in violation of Ohio Rev. Code Ann. § 4549.04 (A) (1973, App. 342), and the second charging joyriding on the same date in violation of § 4549.04 (D). A bill of particulars filed by the prosecuting attorney specified that

"on or about the 29th day of November, 1973, Nathaniel Brown unlawfully did steal a Chevrolet motor vehicle, and take, drive or operate such vehicle without the consent of the owner, Gloria Ingram ." App. 10. Brown objected to both counts of the indictment on the basis of former jeopardy.

...

On March 18, 1974, at a pretrial hearing in the Cuyahoga County Court of Common Pleas, Brown pleaded guilty to the auto theft charge on the understanding that the court would consider his claim of former jeopardy on a motion to withdraw the plea. Upon submission of the motion, the court overruled Brown's double jeopardy objections. The court sentenced Brown to six months in jail but suspended the sentence and placed Brown on probation for one year.

The Ohio Court of Appeals affirmed. It held that under Ohio law the misdemeanor of joyriding was included in the felony of auto theft:

"Every element of the crime of operating a motor vehicle
without the consent of the owner is also an element of the
crime of auto theft. "The difference between the crime of
stealing a motor vehicle, and operating a motor vehicle
without the consent of the owner is that conviction for
stealing requires proof of an intent on the part of the thief
to permanently deprive the owner of possession.' . .
[T]he crime of operating a motor vehicle without the

2 Section 4549.04 (A) provided: "No person shall steal any motor vehicle." A violation was punishable as a felony.

The joyriding count of the indictment was nol prossed.

consent of the owner is a lesser included offense of auto theft...." Id., at 22.

Although this analysis led the court to agree with Brown that "for purposes of double jeopardy the two prosecutions involve the same statutory offense," id., at 23, it nonetheless held the second prosecution permissible:

"The two prosecutions are based on two separate acts of the appellant, one which occurred on November 29th and one which occurred on December 8th. Since appellant has not shown that both prosecutions are based on the same act or transaction, the second prosecution is not barred by the double jeopardy clause." Ibid.

The Ohio Supreme Court denied leave to appeal.

We granted certiorari to consider Brown's double jeopardy claim, 429 U. S. 893 (1976), and we now reverse.

II

The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." It has long been understood that separate statutory crimes need not be identical-either in constituent elements or in actual proof-in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law § 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L. J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the "same offence" under the Double Jeopardy Clause.

4

As the Ohio Court of Appeals recognized, the Wickliffe and Cuyahoga County prosecutions must be viewed as the acts of a single sovereign under the Double Jeopardy Clause. Waller v. Florida, 397 U. S. 387 (1970).

Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v. Wilson, 420 U. S. 332, 339-340 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial."

The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U. S. 386 (1958); Bell v. United States, 349 U. S. 81 (1955); Ex parte Lange, 18 Wall. 163 (1874). Where successive prosecutions are at stake, the guarantee serves "a constitutional policy of finality for the defendant's benefit." United States v. Jorn, 400 U. S. 470, 479 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U. S.

5 We are not concerned here with the double jeopardy questions that may arise when a defendant is retried on the same charge after a mistrial, e. g., United States v. Jorn, 400 U. S. 470 (1971), or dismissal of the indictment or information, e. g., United States v. Jenkins, 420 U. S. 358 (1975), or after a conviction is reversed on appeal, e. g., United States v. Ball, 163 U. S. 662 (1896). Nor are we concerned with the permissibility of separate prosecutions on closely related criminal charges when the accused opposes a consolidated trial, e. g., Jeffers v. United States, ante, p. 137.