¶20 (concurring) — The majority affirms the Court of Appeals by finding error in the trial court’s inquiry to the jury and holding that in its absence the jury’s silence on the greater offense of assault in the first degree would have implicitly acquitted Roy Linton of that charge. While I agree with the majority’s ultimate resolution, I write separately because, as the majority itself notes, there was no implied acquittal based on silence in this case. Majority at 787. Instead I would hold Linton’s retrial for first degree assault is barred by his conviction for second degree assault, the same offense for double jeopardy purposes.
Sanders, J.¶21 The United States Constitution provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Washington Constitution provides that “[n]o person shall... be twice put in jeopardy for the same offense.” Wash. Const, art. I, § 9. These clauses are “identical in thought, substance, and purpose.” State v. Schoel, 54 Wn.2d *790388, 391, 341 P.2d 481 (1959). The double jeopardy clause protects defendants from a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). “[T]he protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” Richardson v. United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984).
¶22 “As a general rule, jeopardy terminates with a conviction that becomes unconditionally final, but not with a conviction that the defendant successfully appeals.” State v. Corrado, 81 Wn. App. 640, 647, 915 P.2d 1121 (1996) (footnote omitted). Put differently, jeopardy terminates once “the State has had — but not before the State has had — one full and fair opportunity to prosecute.” Corrado, 81 Wn. App. at 645-46. In the instant case, the State has had such an opportunity, and it secured a conviction for second degree assault. Linton’s conviction became final once the jury was discharged and he elected not to appeal the resulting judgment.
¶23 The sole remaining question is whether second degree assault is the same offense as first degree assault in the context of double jeopardy analysis. “[T]he 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, 52 S. Ct. 180, 76 L. Ed. 306 (1932). As a lesser included offense, second degree assault does not require the prosecution establish any elements not already a part of first degree assault.7 See RCW 9A.36.011(l)(a), (c); .021(l)(a); see also Brown, 432 U.S. at 168 (“As is invariably true of a greater and lesser included offense, the lesser *791offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft.”). Therefore, under the Blockburger test, the two crimes are the same offense within the framework of double jeopardy analysis. Once Linton’s conviction for second degree assault became final, the jeopardy on that offense terminated and a second prosecution for first degree assault, the same offense for the purposes of double jeopardy, is barred. Brown, 432 U.S. at 165; see also Green v. United States, 355 U.S. 184, 191, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957) (stating that “[a]fter the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder” where the jury was dismissed without returning a verdict on a first degree murder charge but after convicting Green of second degree murder).
¶24 The State’s argument that jeopardy continued because the jury explicitly hung on the first degree assault charge is unpersuasive. While the State correctly notes a declaration of mistrial resulting from a hung jury does not terminate jeopardy, the second prosecution for first degree assault in this case is precluded not by the fact the jury did not render a verdict on that charge, but rather because it did convict Linton of second degree assault. As discussed above, once the second degree assault conviction became final, it terminated jeopardy with respect to that charge, precluding retrial for first degree assault.
¶25 This result is consistent with the policy rationales underlying our endorsement of the unable-to-agree jury instruction discussed in State v. Labanowski, 117 Wn.2d 405, 816 P.2d 26 (1991). Allowing juries to return a verdict on the lesser included offense when they cannot agree on the greater charge “allows the jury to correlate more closely the criminal acts with the particular criminal conviction” and “promotes the efficient use of judicial resources.” Labanowski, 117 Wn.2d at 420. The “unable to agree” instruction “ ‘facilitates the Government’s chances of getting a conviction for something, although at the risk of not getting the one that it prefers.’ ” Id. at 421 (quoting United *792States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978). Permitting the State to retry Linton after securing a conviction for the lesser included offense would not only “burden [the] defendant while allowing the State to benefit from ‘dress rehearsals,’ ” Labanowski, 117 Wn.2d at 420, it would also allow the State to reap the benefits of the unable-to-agree instruction without bearing any of the associated risk. Nothing in our double jeopardy jurisprudence requires such result.
¶26 I would hold that where the jury is hung on the greater charge but convicts of the lesser included charge, and the conviction of the lesser included charge is not overturned on appeal, the conviction, once final, terminates jeopardy, and the defendant cannot be retried for the greater charge if it constitutes the same offense for double jeopardy purposes.
¶27 For the foregoing reasons, I concur that the Court of Appeals should be affirmed.
Alexander, C.J., and Bridge and J.M. Johnson, JJ., concur with Sanders, J.
The information charged Linton with second degree assault (reckless infliction of substantial bodily harm under RCW 9A.36.021(l)(a)), and the amended information charged him with first degree assault (assault with a firearm and any deadly weapon and by any force likely to produce great bodily harm or death under RCW 9A.36.011(l)(a) and (c)). Clerk’s Papers at 97-98.