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Colleen Grady
Colleen Grady, Attorney and Counselor at Law
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Argued February 24, 1969 Decided June 23, 1969* 395 U.S. 711

Customer Question

Argued February 24, 1969 Decided June 23, 1969* 395 U.S. 711 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Syllabus
In each of these cases, the respondent was convicted of a crime and sentenced to a prison term; the original conviction was set aside in a post-conviction proceeding for constitutional error several years later, and, on retrial, the respondent was again convicted and sentenced. In No. 413, the sentence, when added to the time respondent had served, amounted to a longer total sentence than that originally imposed, and in No. 418, respondent received a longer sentence, with no credit being given for the time already served. In neither case was any justification given for imposition of the longer sentence. Respondents sought habeas corpus relief in the District Courts, which, in each instance, held the longer sentence on retrial unconstitutional. The Courts of Appeals affirmed.
Held:
1. The basic Fifth Amendment guarantee against double jeopardy, which is enforceable against the States by the Fourteenth Amendment, Benton v. Maryland, post, p. 395 U. S. 784, is violated when punishment already exacted for an offense is not fully "credited" in imposing a new sentence for the same offense. Pp. 395 U. S. 717-719.
(a) The guarantee against double jeopardy does not restrict the length of sentence upon reconviction, the power to impose whatever sentence is legally authorized being a corollary of the well established power to retry a defendant whose conviction has been set aside for an error in the previous proceeding. Pp. 395 U. S. 719-721.
(b) Imposition of a more severe sentence upon retrial does not violate the Equal Protection Clause of the Fourteenth Amendment, since there is no "classification" of those successfully seeking new trials. Pp. 395 U. S. 722-723.
Page 395 U. S. 712
3. Due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial, and that a defendant be freed of any apprehension of retaliatory motivation on the part of the sentencing judge.
****BELOW - IN MY MATTER*****
In my NC Case(s) both two (2) DV claims, and criminal violation of DV involves a defendant father whom upon 1st dv filing Aug 2014, then in Nov 2014 successfully defeated the back-to-back false criminal violation from same DV. The criminal claim generated from a Hospital calling notifying Plaintiff Mother, listed as next of kin upon Defendant coming out of surgery.
On Dec 2014 Defendant father files for Custody. 3 weeks later December 31st, 2014 mother gains another domestic violence order claim indicating same as before threatening calls (Double Jeopardy?). Defendant father subpoenaed Certified Verizon cell call records showing father never called Plaintiff; but "did show Plaintiff mother called Defendant father four (4) times". Yet, the Court judge ruled - Defendant guilty of DV contrary to exculpatory competent Verizon evidence. The court ignored where Plaintiff mother at trial reacted to Certified Verizon record changing story stating calls came to her work "landline" and not cell as 1st indicated in open court, past trial testimony in Court recordings destroyed in fire mos PRIOR TO TRIAL. Yet the Def father guilty Dec 10th, 2015; after almost 1 year from Dec 31st, 2014 DV filing and five months after the August 12-14 trial. Five additional months and where secretly, the judge granted a Oct 2014 opposing counsels FAXED ex parte DV extension w/o any Defendant notification.
Motions Dismiss Double jeopardy denied, Motion Dismissal Destruction Court Evidence by fire denied, Motion Recuse denied-Bias Abuse of Court denied, Motion reconsider Certified Verizon cell records evidence of threatening calls all denied. Classic abuse by court judge seeking to regain funding for domestic violence cases successfully prosecuted after two not guilty verdicts. In the Defendant's Custody matter the same court found in favor of mother denying shared custody although mother admitted to cocaine distribution and use. Judge stated - didn't care to hear evidence go appeal. Other evidence was mothers admitted cocaine use, false allegations from previous charges, and perjury from previous hearings all not included in Findings of Fact Conclusion of Law even after informing judge. Denied procedural due process judge did not hear DV counterclaim.
ATTEMPT TO BUT DENIED: (Objected yet, Final Orders Entered w/o defense counsel Dec 2015). Def-counsel Withdraws Jan 2016 so not at Final
1. Motion Violation Due Process counterclaim not heard,
2. Motion Dismiss Court Destruct Competent Evidence fire,
3. Motion Dismiss Double Jeopardy - Similar DV complaint with same elements,
4. Motion Recuse - Bias Prejudice Partiality, abuse of office, & ineffective counsel
Submitted: 1 year ago.
Category: Criminal Law
Customer: replied 1 year ago.
Hello.
I added the US court case as reference for Double Jeopardy only. Other case-law may reflect issues and more closely apply. I shooting for anything where I am not supporting an unjust family court legal system with $ money I no longer have. Financially, professionally and without my five year old son I am down for the count. Thanks
Expert:  Colleen Grady replied 1 year ago.

Hello. My name is***** have been an attorney for 26 years. I will help you today.

Expert:  Colleen Grady replied 1 year ago.

May I ask what court in NC this is?

Expert:  Colleen Grady replied 1 year ago.

I found the following regarding Double Jeopardy. It applies specifically to Domestic Violence cases in NC:

Bars and defenses that may apply. · Double jeopardy: Where the defendant has been prosecuted for contempt pursuant to G.S. 50B-4(a) for violating a DVPO, the defendant may not also be prosecuted for violation of a DVPO based on the same conduct. The defendant may not be prosecuted for violation of a DVPO or for contempt for violating a DVPO, and also be prosecuted for the substantive crime that constituted the violation. See State v. Dye, 139 N.C. App. 148 (2000) (double jeopardy barred later prosecution for domestic criminal trespass after defendant had been adjudicated to be in criminal contempt for violating domestic violence protective order forbidding similar conduct); State v. Gilley, 135 N.C. App. 519 (1999) (double jeopardy precluded conviction for assault on female where defendant had previously been held in criminal contempt for violation of protective order by committing assault). Here is the Double Jeopardy Case:

North Carolina Court of Appeals·139 N.C. App. 148 (N.C. Ct. App. 2000)STATE V. DYE
STATE OF NORTH CAROLINA V. ***** ***** DYE, DEFENDANT. NO. COA98-1593 NORTH CAROLINA COURT OF APPEALS FILED 18 JULY 2000
Constitutional Law — Double jeopardy — domestic criminal trespass — criminal contempt

The trial court erred by denying defendant's motion to dismiss the charge of domestic criminal trespass after she was already convicted of criminal contempt because: (1) the double jeopardy clause prohibits subsequent prosecution of a substantive criminal offense following an adjudication of criminal contempt based upon violation of a court order forbidding commission of acts constituting such substantive offense; and (2) the elements of the offense actually deemed to have been violated in the contempt proceeding, defendant's "coming to" the residence of her ex-husband in violation of a court order, met the essential legal elements of domestic criminal trespass under N.C.G.S. § 14-134.3(a).
APPEAL BY DEFENDANT FROM JUDGMENT ENTERED 19 AUGUST 1998 BY JUDGE CATHERINE C. EAGLES IN GUILFORD COUNTY SUPERIOR COURT. HEARD IN THE COURT OF APPEALS 20 OCTOBER 1999.
Attorney General Michael F. Easley, by Associate Attorney General Mary Penny Thompson, for the State.

W. ***** *****, for defendant-appellant. *149149

JOHN, Judge.

Defendant appeals judgment entered upon conviction by a jury of domestic criminal trespass. We vacate the judgment.

The State's evidence at trial tended to show the following: Defendant and Carey James Dye (Mr. Dye) divorced 14 December 1987. The two entered into a 20 February 1995 civil consent order (the Order) providing in pertinent part that "[d]efendant shall not come to the residence of [Mr. Dye]."

On 24 July 1996, defendant knocked on the front door of Mr.Dye's residence. The door was opened by the couple's child, William Dye (William), who was living with Mr. Dye. William testified defendant began screaming and directing profanity against him, his father, and other family members. William related he "repeatedly" told defendant "she wasn't supposed to be there, [and] she needed to go away." When defendant failed to comply, William closed the door and telephoned the police and his father. As a result, on 26 July 1996, Mr. Dye filed a motion seeking that defendant be held in criminal contempt for violation of the Order.

On 10 May 1997, defendant again returned to Mr. Dye's residence, knocked on the door, and began screaming and cursing at William when he opened it. Based upon this occurrence, Mr. Dye filed a second contempt motion 21 May 1997. Both motions were heard 27 May 1997 in Guilford County District Court (the contempt proceeding). On 16 June 1997, the trial court ruled defendant had "violated the . . . Order of February 20, 1995 . . . [and wa]s in criminal contempt . . . for going to the residence of [Mr. Dye]." Defendant was committed to the Guilford County jail for 30 days.

In addition to his 21 May 1997 contempt motions, Mr. Dye also obtained a warrant charging defendant with domestic criminal trespass in connection with the 10 May 1997 incident. Defendant moved to dismiss 18 May 1998, which motion was denied by the trialcourt 8 July 1998. Defendant was convicted of the charge by a jury on 19 August 1998 and sentenced to 45 days imprisonment. Defendant appeals.

Defendant contends the trial court erred in denying her 18 May 1998 motion to dismiss, asserting prosecution of the criminal charge violated the "Fifth Amendment Double Jeopardy Clause." Based upon this Court's decision in State v. Gilley, 135 N.C. App. 519, 530, 522 S.E.2d 111, 118 (1999), we agree. *150150

It is well established that the Fifth Amendment to the United States Constitution (the Double Jeopardy Clause) protects against, inter alia, a "second prosecution for the same offense after [a prior] conviction," State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986), including a nonsummary criminal contempt adjudication, United States v. Dixon, 509 U.S. 688, 696, 125 L.Ed.2d 556, 568 (1993), as occurred in the case sub judice.

In Gilley, this Court held that the Double Jeopardy Clause prohibits subsequent prosecution of a substantive criminal offense following an adjudication of criminal contempt based upon violation of a court order forbidding commission of acts constituting such substantive offense. Gilley, ___ N.C. App. at ___, 522 S.E.2d at 118. Guided by the majority opinion in Dixon, 509 U.S. at 696, 125 L.Ed.2d at 568, we stated there must be a comparison of

"the elements of the offense actually deemed to have been violated in th[e] contempt proceeding against the elements of the substantive criminal offense(s),"
Gilley, ___ N.C. App. at ___, 522 S.E.2d at 116 (quoting Commonwealth v. Yerby, 679 A.2d 217, 222 (Pa. 1996)), "rather than comparison of the general literal elements of contempt with elements of the subsequent substantive criminal offense," id. If the substantive elements of the offenses are the same, or if one is a lesser included offense of the other, double jeopardy attaches and the subsequent prosecution is barred. State v. McAllister, ___ N.C. App. ___, ___, ___ S.E.2d ___, (COA99-510) (2000). Such "approach follows the position of at least five justices in Dixon, and best ensures protection of `the core values of the Double Jeopardy Clause.'" Gilley, ___ N.C. App. at ___, 522 S.E.2d at 116 (quoting Gardner, 315 N.C. at 452, 340 S.E.2d at 707).
At the contempt proceeding, both motions filed by Mr. Dye were considered and the court set out the following pertinent findings of fact in its order:

9. On July 24, 1996, Defendant presented herself at the front door of [Mr. Dye's] residence and knocked on the door. The parties' child . . . who . . . lives at the residence with [Mr. Dye], gave evidence in open Court of Defendant screaming and cursingin a hysterical manner at the door of the residence on July 24, 1996.
10. On May 10, 1997, the minor child . . . also saw Defendant approach the residence where he and [Mr. Dye] live, knock upon *151151 the door and begin screaming and using profanity against him and other members of his family.
The court thereupon adjudicated defendant as being in criminal contempt for "going to the residence" of Mr. Dye in violation of the Order.

At her subsequent jury trial on 19 August 1998, defendant was convicted of domestic criminal trespass based upon the 10 May 1997 incident. The issue thus becomes whether defendant's previous "conviction" in the criminal contempt proceeding barred her subsequent prosecution in the trial court.

We note initially that the instant record contains no transcript of the contempt proceeding, and the court's resultant 16 June 1997 contempt order recites only the conclusion that "[t]he defendant is in criminal contempt . . . for going to the residence of [Mr. Dye]." This determination followed detailed findings of fact relating to both the 24 July 1996 and the 10 May 1997 trespass, only the latter of which served as the offense date for the criminal trespasses charge.

Nonetheless, any ambiguity surrounding the trespass dateserving as basis for the criminal contempt adjudication, in light of "the terseness of the contempt judgment," Gilley, ___ N.C. App. at ___, 522 S.E.2d at 117, "must be construed in favor of defendant," id.; see Dixon, 509 U.S. at 724, 125 L.Ed.2d at 586 ("interests of the defendant are of paramount concern"), and O'Briant v. O'Briant, 313 N.C. 432, 435, 329 S.E.2d 370, 373 (1985) ("criminal contempts are crimes, and accordingly, the accused is entitled to the benefits of all constitutional safeguards"), and see Gardner, 315 N.C. at 451, 340 S.E.2d at 707 (ambiguous verdict construed in favor of defendant). We therefore must consider defendant to have been adjudicated in contempt based upon the 10 May 1997 incident which resulted in the domestic criminal trespass conviction.

Under N.C.G.S. § 14-134.3 (1993), the essential elements of domestic criminal trespass include:

enter[ing] after being forbidden to do so or remain[ing] after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse. . . .
G.S. § 14-134.3(a). The Order mandated that defendant "shall not come to" the residence of her former spouse, Mr. Dye. *152152

In interpreting statutory language, "it is presumed the General Assembly intended the words it used to have the meaningthey have in ordinary speech," Nelson v. Battle Forest Friends Meeting, 335 N.C. 133, 136, 436 S.E.2d 122, 124 (1993), and when the plain meaning is unambiguous, a court should go no further in interpreting the statute than its ordinary meaning, id. Giving the statutory element of "enter[ing] . . . upon" its ordinary meaning, see id., we conclude that the statutory language is equivalent to the phrase "shall not come to" contained in the Consent Order.

We are cognizant of the holding in Gilley that:

as to the offense of domestic criminal trespass, G.S. § 14-134.3, the [protective] order directed defendant to "stay away" from the marital residence, while the statute forbids a person from "enter[ing] . . . the premises occupied by a . . . former spouse."
Unlike the broad and general "stay away from" terminology rejected in Gilley, however, the phrase "shall not come to the residence" at issue herein, considered in terms of "ordinary speech," Nelson, 335 N.C. at 136, 436 S.E.2d at 124, is specifically akin to the statutory prohibition of "enter[ing]" upon forbidden premises.

"Enter" has been defined as:

to go or come into a material place; to make a physical entrance or penetration; to pass into the interior of; ingress; to cause to be admitted; to come into or upon. . . .
Webster's Third New International Dictionary 756 (1966) (emphasis added). Similarly, "come" has been defined as "to move toward orenter; to approach or reach; to arrive at a particular place," id. at 453, "to present oneself," Black's Law Dictionary 242, and the term "to" has been construed as "movement toward; contact; close against," Webster's at 2401. On the other hand, "stay" has been defined as "to halt an advance; remain," id. at 2231, and the word "away" as "from this or that place," id. at 152.

Prohibitions against "enter[ing]" or "com[ing] to" a residence would therefore effectively be violated upon actual entrance onto or physical contact with designated premises. However, an order containing the directive to "stay away" from a residence might arguably be violated by travel on a public street passing in front of the residence, or entry into the neighborhood or even the town wherein the residence is located. By contrast, the prohibition forbidding one to *153153 "enter" or "come to" certain premises does not lend itself to such uncertainties, because the scope is expressly limited to a "physical entrance" upon the actual "material" premises. See Webster's at 756.

In short, we hold the phrase "shall not come to the residence" contained in the Order is equivalent to the domestic criminal trespass element of "enter[ing] . . . upon the premises," G.S. § 14-134.3(a), for purposes of double jeopardy. Accordingly, "the elements of the offense actually deemed to have been violated inth[e] contempt proceeding," Yerby, 679 A.2d at 222, i.e., defendant's "coming to" the residence of Mr. Dye on 10 May 1997 in violation of the Order, meet the essential legal elements of domestic criminal trespass under G.S. § 14-134.3(a), i.e., entering upon Mr. Dye's premises on 10 May 1997 after having been forbidden to do so. Under the circumstances of the instant case, therefore, the Double Jeopardy Clause constituted a bar to defendant's subsequent prosecution upon the domestic criminal trespass charge, see Gardner, 315 N.C. at 452, 340 S.E.2d at 707 (if substantive offenses are the "same . . . double jeopardy attaches and the subsequent prosecution is barred"), and her conviction must be vacated, see Gilley, ___ N.C. App. at ___, 522 S.E.2d at 115, and Yerby, 679 A.2d at 221.

In light of the foregoing, we decline to address defendant's remaining assignments of error.

Judgment vacated.

Judges LEWIS and MCGEE concur.
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If you intend to Appeal this case, you have to have a final order of the court you are in. You cannot appeal orders that are temporary. For example, the Ex Parte DV order. You also have to "Notice to Appeal" within 30 days of when the final order is entered. You indicated that Final orders were entered in December 2015.

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