[No. 78658-5. En Banc.]
September 25, 2007. Decided January 31, 2008.
[1] Criminal Law — Judgment — Vacation — Void Judgment — Motion — By State — Validity. The State generally has the authority to move to vacate a criminal judgment under CrR 7.8(b) on the grounds that the judgment is void or for any other reason justifying relief from operation of the judgment. [2] Criminal Law — Former Jeopardy — Constitutional Provisions — Individual Right — In General. The protection against double jeopardy guaranteed by Const. art. I, § 9 and the Fifth Amendment is an individual right which, as a general proposition, is invoked by a defendant seeking protection against retrial. [3] Criminal Law — Former Jeopardy — Constitutional Provisions — State and Federal. The double jeopardy clauses of Const. art. I, § 9 and the Fifth Amendment have consistent analytical interpretations. [4] Criminal Law — Former Jeopardy — Bar to Prosecution — Retrial — Test. The constitutional protection against double jeopardy bars the retrial of a criminal defendant if jeopardy has previously attached, jeopardy has terminated, and the defendant is in jeopardy a second time for the same offense in fact and law. [5] Criminal Law — Former Jeopardy — When Jeopardy Terminates — In General. A criminal defendant's jeopardy on a charge may terminate by an acquittal of the charge, by a final conviction of the charge, or by the trial court's dismissal of the jury without the defendant's consent and dismissal is not in the interest of justice. [6] Criminal Law — Former Jeopardy — Multiple Prosecutions — In General. The constitutional protection against double jeopardy prohibits individuals from being subjected to multiple proceedings for the same criminal act, regardless of the outcome of the successive proceedings. The protection is directed at the threat of multiple prosecutions. Where an individual has been once convicted and punished for a particular crime, principles of fairness and finality require that he or she not be subjected to the possibility of further punishment by being again tried or sentenced for the same criminal act. [7] Criminal Law — Former Jeopardy — Constitutional Provisions — Individual Right — Focus of Protection. The constitutional protection against double jeopardy is cased in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. It is the trial itself that is the focus of the protection. Where a defendant has once been tried, convicted, and served sentence for a criminal act, and has not sought any relief therefrom, the defendant is entitled to finality. [8] Homicide — Felony Murder — Second Degree Felony Murder — Assault — Judgment — Facial Invalidity — Applicability. The Supreme Court's holding in In re Pers. Restraint of Hinton, 152 Wn.2d 853 (2004), that felony murder predicated on assault is a facially invalid crime, is relevant only to the one-year time limitation of RCW 10.73.090(1) for filing a petition or motion for collateral relief from a criminal judgment and sentence and does not control the determination of any other issues. [9] Appeal — Decisions Reviewable — Ripeness. An appellate court may decline to consider an issue that is not ripe for review. [10] Criminal Law — Trial — Joinder or Severance — Offenses — Mandatory Joinder — Court Rule — "Ends of Justice" — Applicability. The "ends of justice" provision of CrR 4.3.1(b)(3) applies only to an analysis of the mandatory joinder rule. [11] Criminal Law — Former Jeopardy — Multiple Prosecutions — Conviction of Nonexistent Crime — Vacation and Retrial — Opposition by Defendant — Manifest Necessity — Absence. Absent a high degree of manifest necessity to avoid defeating the ends of public justice, the constitutional protection against double jeopardy prevents a trial court from vacating a defendant's conviction of a nonexistent crime upon a motion by the State and allowing the State to retry the defendant on an amended charge if the defendant, having already served or nearly served the sentence for the conviction, opposes the motion. In determining whether a manifest necessity is present, the trial court must balance the government's need for retrial in administering justice and the defendant's valued constitutional right to have the first trial be the last. STEPHENS, J., did not participate in the disposition of this case. Nature of Action: The State moved to vacate a criminal offender's conviction of second degree felony murder that was based on the predicate felony of assault and to file an amended information charging the offender with first degree manslaughter and first degree assault. The State argued that the conviction was invalid under In re Pers. Restraint of Andress, 147 Wn.2d 602 (2002) (holding that, under the then-existing statute, felony murder could not be based on assault as the predicate offense) and In re Pers. Restraint of Hinton, 152 Wn.2d 853 (2004) (holding that personal restraint petitions seeking vacation of felony murder charges under the Andress ruling are not subject to the statutory one-year time limitation on collateral attacks on criminal judgments and sentences). The offender was nearing the end of his sentence on his conviction of second degree felony murder and opposed having the conviction set aside. Superior Court: The Superior Court for King County, No. 93-1-07954-7, Nicole MacInnes, J., on April 13, 2006, vacated the conviction of second degree felony murder and granted the State permission to amend the information to charge manslaughter. The court reserved ruling on whether the State could amend the information to charge assault. Supreme Court: Holding that, under the facts of the case, the constitutional protection against double jeopardy precludes the State from retrying the defendant, the court reverses the trial court's orders. Christine A. Jackson- (of The Public Defender) and Kathryn L. Ross- (of Washington State Death Penalty Assistance Center), for appellant. Daniel T. Satterberg-, Prosecuting Attorney, and Melinda J. Young-, James M. Whisman-, and Jeffrey C. Dernbach-, Deputies, for respondent. En Banc ¶1 C. JOHNSON, J. — This case asks us to determine whether the State may, pursuant to CrR 7.8(b), move to vacate a criminal conviction against a defendant's objections and/or whether double jeopardy principles preclude the State from retrial without a defendant's consent. FACTS ¶2 In 1994, Terrence Hall was convicted of second degree felony murder. In 2002, this court held that felony murder charges cannot be based on assault as the predicate felony. In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). In December 2004, the Department of Corrections gave notice to all inmates who could be affected by our decisions in Andress and Hinton. In re Pers. Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004) (holding that personal restraint petitions vacating felony murder convictions under Andress are not subject to the one year statutory limit). ¶3 In response, although many inmates filed petitions to vacate their convictions, Hall did not. Hall was 69 years old, disabled, and nearing the end of his prison sentence. His early release date was June 2005, and his maximum release date was February 2007. He chose to serve the remainder of his term and did not take any action to set aside his conviction. ¶4 However, on January 27, 2006, the State filed a motion in superior court to vacate Hall's conviction and to file an amended information charging Hall with first degree manslaughter and first degree assault. In its motion, the State argued that the conviction was invalid under Andress and Hinton. The trial court granted, over Hall's objection, the motion to vacate the conviction and amend the information as to manslaughter, but it reserved ruling on whether the State could amend with the assault charge. Hall appealed directly to this court. ANALYSIS ¶9 The State first asserts that Hall's reliance on cases of acquittal terminating jeopardy are inapplicable. It points out that the United States Supreme Court in United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975), stated that the "first jeopardy continues until he is acquitted or his conviction becomes final." Wilson, 420 U.S. at 343 n.11 (holding that the government may appeal a postverdict ruling without violating double jeopardy where the appeal does not result in a new trial). It appears the State is arguing that Hall's conviction was not final once Andress and Hinton were decided, and thus jeopardy automatically continues, despite Hall's objection to the vacation of his conviction. Although Wilson is factually distinguishable from Hall's case in that Wilson was acquitted and the State appealed, here the State fails to recognize a basic principle from which the court drew its analysis. The double jeopardy clause is a protection for individuals from being subjected to multiple proceedings, regardless of the outcome of the second trial. The United States Supreme Court recognized the "development of the Double Jeopardy Clause from its common-law origins thus suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial." Wilson, 420 U.S. at 342. The focus of this constitutional provision is on an individual's right to be free from an overreaching government. ¶10 The United States Supreme Court has noted that where a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense. Wilson, 420 U.S. at 343. Society depends on our justice system to hold the guilty accountable while ensuring each individual subject to a criminal trial is treated fairly and justly. The double jeopardy clause is our expression of this right, a right belonging to every individual as a protection from the possibility of an overreaching government. The power to invoke this right is the defendant's, not the State's. ¶16 Where a motion for mistrial is made without the defendant's consent, the prosecutor must demonstrate manifest necessity in order to retry the defendant. Retrial is only necessary under this standard where, taking all of the circumstances into consideration, there is a high degree of manifest necessity to avoid defeating the ends of public justice. Arizona, 434 U.S. at 506. The Court in Arizona recognized the defendant's valued right to be protected from double jeopardy brought on by the government. ¶17 The double jeopardy clause was enacted for the purpose of protecting individuals against acts of governmental oppression. When a defendant successfully challenges a conviction and is subject to a new trial, the continuing jeopardy is not brought on by the government. Scott, 437 U.S. at 91. However, where the State brings the motion, a different analysis is required. ¶18 We have recognized the importance of the defendant's consent in continuing jeopardy. In State v. Jones, 97 Wn.2d 159, 163, 641 P.2d 708 (1982), we held that retrial is barred where a mistrial is declared without the defendant's consent unless the discharge was necessary in the interest of the proper administration of justice. The proper administration of justice is analogous to the United States Supreme Court's manifest necessity analysis. Under both standards, the trial court has the duty to balance the government's need for retrial in administering justice and the defendant's valued constitutional right to have the first trial be his last. See Arizona, 434 U.S. at 503-05 (balancing defendant's interest in having his guilt decided in one proceeding with society's interest in affording the prosecutor one full and fair opportunity to present his evidence at trial). ¶19 Although a mistrial in this case was not declared, the same basic double jeopardy principles apply where an individual is threatened with a second trial without his own voluntary act continuing jeopardy. The determination of whether there is manifest necessity to retry Hall, without Hall's consent, should control whether jeopardy continues and retrial is constitutional. Hall's individual interests and constitutional protections must be balanced with society's interest in recharging Hall with another offense to ensure the ends of justice are met. Hall's individual right to be free from continuing jeopardy imposed by the government weighs heavily in his favor. ¶20 The circumstances in this case are very unique; almost all other defendants who were held or tried at the time Andress was decided voluntarily moved to vacate their convictions. Fairness and justice dictate that an individual who has served his sentence, and is not seeking any relief other than that imposed in the original action, should not be retried by the State for the same offense. We conclude the trial court erred in granting the State's motion in this case. We reverse the order granting the State's motion to vacate the original conviction and file the amended information. ALEXANDER, C.J.; MADSEN, SANDERS, CHAMBERS, OWENS, Fairhurst, and J.M. JOHNSON, JJ.; and BRIDGE, J. PRO TEM., concur.