State v. Dively

Decision Date14 April 1983
Citation458 A.2d 502,92 N.J. 573
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Russell P. DIVELY, Defendant-Appellant.
CourtNew Jersey Supreme Court

Herbert I. Waldman, Designated Counsel, West Orange, for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney).

Larry R. Etzweiler, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney).

The opinion of the Court was delivered by


On April 7, 1979 the defendant, Russell Dively, met his son at a local bar in Pemberton Township. The defendant became intoxicated. Despite his son's efforts to restrain him, the defendant took the keys to his car and drove away. On the way to his home, he failed to negotiate a curve on Magnolia Road in Pemberton Township, crossed the center line, struck a vehicle traveling in the opposite direction, and caused the death of the driver of that vehicle. At the time of the accident the defendant's driving privileges had been revoked. He had twice previously been convicted of drunk driving.

Four municipal court summonses were issued on the date of the accident: (1) drunk driving ( N.J.S.A. 39:4-50); (2) driving without a license ( N.J.S.A. 39:3-10); (3) reckless driving ( N.J.S.A. 39:4-96); and (4) failure to keep right ( N.J.S.A. 39:4-82). On May 16, 1979 an additional summons was issued for driving after license revocation ( N.J.S.A. 39:3-40). When the municipal court hearings commenced on September 5, 1979, the parties and the court were aware of the death resulting from the accident. 1 The municipal court records indicate that the reckless driving and failure to keep right were merged 2 into the drunk driving charge. The records also state that the defendant pleaded guilty to the drunk driving, driving without a license and driving while on the revoked list charges. The municipal court postponed sentencing until the defendant completed a program at the Burlington County Alcohol Treatment Center.

Upon completion of the program, the defendant returned to the municipal court on October 25, 1979. The judge sentenced the defendant as follows: driving without a license--$15 fine and $15 court costs; drunk driving--$1,000 fine, $15 court costs and suspension of license for five years; driving after license revocation--six months in jail, of which all but 45 days were suspended, six months' probation and completion of a Burlington County alcoholic program.

The Burlington County Grand Jury indicted the defendant on December 21, 1979 for causing death by auto ( N.J.S.A. 2A:113-9) in the same accident as had been the subject of the municipal court complaints. On June 18, 1980, the defendant entered a plea of guilty. The next day the United States Supreme Court decided Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). The defendant, believing that this decision barred a trial for causing death by auto on federal double jeopardy grounds, moved to withdraw his guilty plea. The motion was granted and the defendant then moved for dismissal of the indictment, claiming that he was twice being placed in jeopardy. The motion was denied. Immediately thereafter, the defendant again pleaded guilty, reserving, however, the right to appeal the denial of his motion for dismissal on the ground that it was barred because of the Double Jeopardy Clause of the federal Constitution. The prosecutor consented to and the court approved the conditional plea. R. 3:9-3(f). For purposes of appellate review, the prosecutor conceded that the same evidence that would have been offered on the complaints in the municipal court would have been used to prove defendant's guilt of death by auto.

The trial court sentenced the defendant on the death by auto conviction to 364 days in the county jail, suspending six months of the sentence and placing the defendant on probation for five years, on condition that he "remain away from all alcohol" and participate in an Alcoholics Anonymous program. The Appellate Division, finding that the Double Jeopardy Clause did not apply, affirmed the conviction. We initially denied defendant's petition for certification, 91 N.J. 187, 450 A.2d 524 (1982), and motion for reconsideration of that denial. After becoming aware of an opinion of a different panel of the Appellate Division, State v. DeRosa, No. A-4235-80T4 (May 13, 1982), which apparently conflicts with the Appellate Division opinion in this case, we granted defendant's petition for certification. 91 N.J. 285, 450 A.2d 593 (1982).

The defendant's conditional guilty plea reserved for appeal the effect of the Double Jeopardy Clause on the subsequent prosecution for death by auto. That Clause is found in the Fifth Amendment to the federal Constitution and reads, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; ..."

We note that the comparable provision in the State Constitution 3 has been construed to be coextensive with the Double Jeopardy Clause. State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980); State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976); State v. Kleinwaks, 68 N.J. 328, 334 n. 4, 345 A.2d 793 (1975). This construction has been impelled, at least in part, because the fundamental federal constitutional guarantee is applicable to the states by virtue of the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969), the Supreme Court referred to the three separate constitutional protections embodied in the Double Jeopardy Clause as follows:

It 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. [footnotes omitted] Central to the theme of the Double Jeopardy Clause is the nexus between the first and second prosecution. They must be linked by the "same offense." The Supreme Court has adopted the proposition that where a lesser offense is an essential component of a greater offense, arising out of the same conduct, then conviction or acquittal of the lesser bars subsequent prosecution of the greater crime. 4 This proposition was developed in a series of cases beginning with Morey v. Commonwealth, 108 Mass. 433 (1871), and first discussed at length by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger the defendant was charged with and convicted of violating two sections of the Harrison Narcotic Act. One made it illegal to sell certain drugs except in or from the original package. Another required that such drugs be sold only on a written order. The Supreme Court held that these were separate offenses and that a conviction of one did not preclude a conviction of the other. Thus the defendant could be punished separately for each offense. The Court stated:

Each of the offenses created requires proof of a different element. The applicable rule is that where 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 an additional fact which the other does not. [284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309]

The primary focus in Blockburger was the protection against multiple punishments. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), however, concerned successive prosecutions. There the defendant was tried and convicted of operating a car without the owner's consent, a misdemeanor under Ohio law. Subsequently, he was tried and convicted of stealing the motor vehicle. The Ohio Court of Appeals had determined that the crime of operating a motor vehicle without the consent of the owner is a lesser-included offense of auto theft. The United States Supreme Court held that the Double Jeopardy Clause barred the second prosecution. Determining what is the same offense depended, the Court observed, upon application of the test enunciated in Blockburger. Id. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 194. Under Blockburger double jeopardy would not apply if both statutes contained an element not required in the other. That was not true in Brown. The lesser offense, joyriding, required no proof beyond that required for conviction of the greater offense, auto theft. The Court then concluded that "[t]he greater offense is therefore by definition the 'same' for purposes of double jeopardy as any lesser offense included in it." 5 Id. at 168, 97 S.Ct. at 2226-27, 53 L.Ed.2d at 196.

The theory that when the greater offense includes the lesser, prosecution for either bars a subsequent prosecution for the other has been the settled law of this State. 6 See State v. Wolf, 46 N.J. 301, 303, 216 A.2d 586 (1966); State v. Williams, 30 N.J. 105, 114, 152 A.2d 9 (1959); State v. Mark, 23 N.J. 162, 168-69, 128 A.2d 487 (1957); State v. Labato, 7 N.J. 137, 144-46, 80 A.2d 617 (1951). In State v. Williams, 30 N.J at 114, 152 A.2d 9, Justice Francis, in referring to the words "same offense" in the State Constitution, wrote:

The significance of the term "same offense" is not limited to the same offense as an entity and designated as such by legal name, but it comprehends also any integral part of such offense which may subject the offender to indictment and punishment. State v. Mowser, supra, at page 483 of 92 N.J.L. Where a lesser offense is a necessary ingredient or component part of the principal or greater offense and grows out of the same transaction, conviction or acquittal of the lesser bars further prosecution for the greater crime. The State v. Cooper, supra, 13 N.J.L. at page 372; State v. Greely, 11 N.J. 485 (1953); and see R.R....

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