I must dissent from the decision of my colleagues holding that the Double Jeopardy Clauses of the Ohio and United States Constitutions bar Knaff's felony conviction for failure to comply. The majority employs an overly mechanical reading of the eases interpreting when jeopardy attaches to a plea before a trial judge, with the result that double jeopardy protection is extended to situations never contemplated by the state or federal Constitutions.
The Double Jeopardy Clause protects a criminal defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and the imposition of multiple punishments for the same offense.5 In both Gusweiler and O'Connor, cited by the majority, the trial judges had accepted the defendants' no-contest pleas and proceeded to find the defendants guilty of offenses that were lesser-included offenses to the ones charged. In each case, the state argued that the trial court had no authority to find the defendant guilty of any offense except the one with which he was charged. The Ohio Supreme Court held in both cases that the courts did have such authority.
Addressing the state's argument that the defendant could still be charged with the greater offense, the court in Gusweiler referred to its statement in O'Connor that the "defendant was placed in jeopardy at the time the trial court exercised its discretion to accept a no contest plea." The court further stated in Gusweiler:
*Page 97"Here, the [trial judge] exercised his discretion to accept a no contest plea and resolved the factual elements of the charged offense against the state by indicating his intent to find the defendant guilty of an attempt rather than guilty of the principal charge. Thus, jeopardy has attached in this case."6
Therefore, in both cases, the court found that the trial judges had made factual determinations against the state on the principal charges, and in effect acquitted the defendants of those charges by finding them guilty of lesser offenses. Quite clearly, when a defendant has been acquitted of an offense, double jeopardy precludes relitigation of that charge.
But that is not the case here. The trial judge made no findings at all, and in fact requested the state to provide the factual basis for the charge before any findings were made. Gusweiler andO'Connor are inapposite here and do not require a finding that the defendant was placed in jeopardy at the moment the court stated that the plea would be accepted. Moreover, the United States Supreme Court, in a case overturning an Ohio Supreme Court decision, rejected the defendant's argument that "a determination of guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded."7
Rather, the court stated that the defendant had offered to resolve only one part of the charges against him, and that "acceptance of the guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an `implied acquittal'" such as the courts found in Gusweiler and O'Connor. Of course, the acceptance of the guilty plea on the lesser-included offense would bar, pursuant to double jeopardy principles, multiple punishments for the same offense, so that the defendant would be entitled to be credited with time served if convicted of the greater offense,but prosecution of the greater offense is not prohibited.8 Thus, even agreeing with the majority view that jeopardy attached when the court stated that the plea was accepted, I must still dissent because on the authority of Ohio v. Johnson, prosecution of the greater offense is not barred by the Double Jeopardy Clause.
In this case, I do not believe that jeopardy even attached. I do not disagree entirely with my colleagues that jeopardy attaches when a defendant enters a plea and a trial court accepts that plea. I do disagree, however, that the court's mere utterance of the words "plea is accepted" in this case constituted the acceptance contemplated by the rule. Rather, the facts of this case show that the court still asked the prosecutor about the factual basis of the charge and clearly indicated, when the state moved to dismiss and Knaff objected, that the acceptance was not final and irrevocable. *Page 98 Gusweiler and O'Connor, the primary sources for the rule that jeopardy attaches when a plea is accepted by a trial court, do not state that the simple, verbal utterance of the words of acceptance is enough for double jeopardy analysis. In Gusweiler, the court accepted the no-contest plea to the rape charge, proceeded to hear the facts, and found the defendant guilty of attempted rape. That same day, the state sought a writ of mandamus to compel the trial court to find the defendant guilty of rape. The state argued, in part, that the "acceptance" never occurred because the court only announced the acceptance orally. The Gusweiler court rejected that argument, indicating that acceptance for the purpose of double jeopardy can be verbal and that the state could not prevent the attachment of jeopardy by appealing or filing for a writ before the court's acceptance was journalized.
In light of the circumstances of that case, I do not believe that it follows, in this case, that jeopardy attached simply because of the court's initial statement that it would accept the plea, especially when the court gave a clear indication that its decision was provisional. I also believe that, just as the prosecution could not prevent the proper attachment of jeopardy in Gusweiler, the defendant here could not force the attachment of jeopardy before the prosecutor had a chance to speak to the court.
The attachment of jeopardy is not per se irrevocable or final. A defendant's breach of a plea agreement, for example, will vacate the attachment of jeopardy.9 More important, in cases where the trial court was not fully and properly aware of the entire circumstances of the crime alleged, courts have been permitted to withdraw acceptance of pleas.10 Some courts have gone so far as to say that the *Page 99 attachment of jeopardy upon a court's acceptance of a guilty plea is neither automatic nor irrevocable,11 and emphasize that the rules related to double jeopardy should not be applied rigidly and mechanically and should not elevate form over substance to frustrate the intent of the Double Jeopardy Clause.12
Other courts have held that the rule that jeopardy attaches upon acceptance of the plea should not permit a criminal defendant to subvert justice by "pleading [guilty] solely to prevent final adjudication of the greater crimes" in an indictment.13 his common-sense approach echoes the reasoning of other courts that when a judge has not been fully apprised of all the matters affecting the offense charged and the plea, the court's verbal acceptance of the plea can be revoked or rescinded without violating double jeopardy principles. As noted above, the United States Supreme Court held in Ohio v. Johnson that pleading guilty to a lesser-included offense on a multicount indictment does not bar prosecution of the greater offense, although double jeopardy considerations may bar the imposition of multiple punishments.
After reading the transcript of the proceedings in the municipal court, I find it apparent that the jurist who presided over the case was not aware of the pending indictment when Knaff entered his guilty plea to reckless operation. Thereafter, the prosecutor moved to dismiss the reckless-operation charge and informed the court of the pending indictment for failure to comply. The trial court made no findings that could be construed either as an acquittal or a conviction, and, by declining acceptance of the plea or by rescinding acceptance of the plea, it put the parties in their pre-plea position, without prejudice to Knaff.
I would hold that because the municipal court judge was not fully informed of the particulars surrounding Knaff's plea to reckless operation, the defendant was not put in jeopardy at the moment the court indicated that the plea was accepted, and its dismissal of that charge was appropriate. Even if jeopardy had attached, I would hold that prosecution of the greater offense is not prohibited. Accordingly, I would overrule Knaff's first and second assignments of error.
5 Brown v. Ohio (1977), 432 U.S. 161, 165, 97 S. Ct. 2221,2225, 53 L. Ed. 2d 187, 193-194.
6 Gusweiler, supra, 65 Ohio St.2d at 61, 19 O.O.3d at 258, 415 N.E.2d at 398.
7 Ohio v. Johnson (1984), 467 U.S. 493, 501, 104 S. Ct. 2536,2542, 81 L. Ed. 2d 425, 434.
8 Ohio v. Johnson, supra, 467 U.S. at 495, 501-502,104 S.Ct. at 2541, 2542, 81 L.Ed.2d at 430-431, 434-435.
9 See, e.g., Ricketts v. Adamson (1987), 483 U.S. 1, 10-11,107 S. Ct. 2680, 2686, 97 L. Ed. 2d 1, 11-13.
10 See State v. Lovelace (Sept. 24, 1997), Medina App. No. 2649-M, unreported, 1997 WL 626572 (court was unaware that defendant had four, not three, prior DUI convictions and vacated plea; no double jeopardy violation found); State v. Duval (1991),156 Vt. 122, 589 A.2d 321 (court had incorrect and incomplete information at the time it accepted plea; vacation of plea and resentencing did not violate double jeopardy); State v. Akins (Tenn.App. 1993), 867 S.W.2d 350 (acceptance of plea was conditional where judge deferred sentencing until he considered the presentence report); People v. Thomas (1994), 25 Cal. App. 4th 921,31 Cal. Rptr. 2d 170 (even though court had accepted plea, it could vacate plea when it belatedly discovered that the offense was not defendant's third, but his fourth, such offense); Statev. Moss (Utah App. 1996), 921 P.2d 1021 (court could rescind acceptance of guilty plea without violating double jeopardy when there was a "misplea" and no undue prejudice to defendant, since defendant did not take action in reliance on acceptance and rescission returned parties to their pre-plea position), certiorari denied (Utah 1996), 929 P.2d 350; State v. Wallace (1997), 345 N.C. 462, 480 S.E.2d 673 (court could rescind acceptance of plea and plea agreement upon hearing new evidence during state's recitation of facts); Ortiz v. State (Tex.Crim.App. 1996), 933 S.W.2d 102 (en banc) (court could rescind its acceptance of guilty plea where it stated that it was going to "defer" findings; acceptance was only conditional).
11 See, e.g., State v. Duval, supra; United States v. Cruz (C.A.1, 1983), 709 F.2d 111, 114; Gilmore v. Zimmerman (E.D.Pa. 1955), 619 F. Supp. 859, affirmed (C.A.3, 1986),793 F.2d 564, certiorari denied (1986), 479 U.S. 962, 107 S. Ct. 459,93 L. Ed. 2d 405.
12 People v. Thomas, supra.
13 See State v. James (June 13, 1986), Wood App. No. WD-85-59, unreported, 1986 WL 6691; accord State v. Stafford (July 14, 1993), Lorain App. No. 92CA005476, unreported, 1993 WL 263083 (rule that jeopardy attaches once court accepts plea should not be construed to allow defense counsel to bring clients into court and subvert justice by entering a guilty plea to some lesser offense on which to build a double jeopardy defense). *Page 100