State v. Sommerville

2013 UT App 40
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

TROY MUNK SOMMERVILLE,

Defendant and Appellant.

Opinion
No. 20081042‐CA
Filed February 22, 2013

Third District, Salt Lake Department
The Honorable Paul G. Maughan
No. 071902557

Charles A. Schultz, Attorney for Appellant
John E. Swallow and Jeffrey S. Gray, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion,
in which JUDGE CAROLYN B. MCHUGH concurred.
JUDGE JAMES Z. DAVIS concurred in the result.

ROTH, Judge:

¶1 This case originated as an interlocutory appeal from the
district court’s denial of Defendant Troy Munk Sommerville’s
motion to dismiss a felony charge for driving under the influence
(DUI). In State v. Sommerville, 2010 UT App 336, 248 P.3d 50, reh’g
granted (Feb. 15, 2011), we reversed, concluding that Utah Code
sections 76‐1‐401, ‐402 and ‐403 (the Single Criminal Episode
Statute or the Statute), which bar multiple prosecutions of offenses
that arise out of a single criminal episode, barred prosecution of the
 State v. Sommerville

felony DUI offense in the district court. Id. ¶ 1. Following the
issuance of our decision, the State filed a petition for rehearing. We
now issue this revised opinion, which entirely replaces our
previously‐issued opinion, and affirm the district court’s decision
not to dismiss the felony DUI offense because we are persuaded
that prosecution of that offense is not barred by the Single Criminal
Episode Statute, double jeopardy, or res judicata.

BACKGROUND

¶2 In December 2006, following an investigation of a hit and
run accident, Sommerville was arrested for DUI, see Utah Code
Ann. § 41‐6a‐502 (LexisNexis 2012).1 At that time, he was also cited
for following too closely, see id. § 41‐6a‐711, as well as other
misdemeanor offenses. The arresting officer later issued another
citation by mail for only the following too closely offense, and
Sommerville promptly paid the bail schedule fine on that citation
in January 2007. Murray City (the City) subsequently filed an
information in the Murray City Justice Court, charging
Sommerville with the remaining misdemeanor offenses, including
the DUI.

¶3 When the City became aware that Sommerville had paid the
fine for the following too closely offense, it moved to dismiss the
remaining misdemeanor offenses. In support of its motion to
dismiss, the City explained that it believed that the remaining
misdemeanor offenses and the following too closely offense “arise
from a single criminal episode” and, “[t]herefore, further
prosecution of this case would be barred by double jeopardy.” In

1
Although many of the statutes cited in this opinion have
been amended since the events underlying this case, none of
those changes substantively affect our analysis. We therefore cite
the most current version of the Utah Code as a convenience to
the reader.

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 State v. Sommerville

February 2007, the justice court dismissed the charges, including
the misdemeanor DUI, on the City’s motion.

¶4 In April 2007, Salt Lake County charged Sommerville in the
district court with a felony DUI offense arising from the same
December 2006 incident because Sommerville had at least two
prior DUI convictions on his record. See Utah Code Ann. § 41‐6a‐
503(2)(b) (providing that the penalty for DUI is a third degree
felony if the defendant has two or more DUI convictions within the
previous ten years). The information also charged Sommerville
with the remaining misdemeanors that had been included in the
information the City had filed in the justice court.2 Sommerville
moved to dismiss, asserting that both double jeopardy and res
judicata barred subsequent prosecution of the offenses due to the
justice court’s earlier dismissal of the same offenses.

¶5 The district court dismissed the misdemeanor offenses but
declined to dismiss the felony DUI offense, concluding that further
prosecution of the DUI offense was not barred by the Single
Criminal Episode Statute or by double jeopardy or res judicata.
Sommerville appeals this decision.

ISSUES AND STANDARDS OF REVIEW

¶6 Sommerville argues that prosecution of the felony DUI
offense is barred under double jeopardy and res judicata.
Constitutional issues such as double jeopardy present questions of
law, which we review for correctness. State v. Cahoon, 2007 UT App
269, ¶ 7, 167 P.3d 533, rev’d on other grounds, 2009 UT 9, 203 P.3d
957. Similarly, whether res judicata applies to bar a subsequent
prosecution is a question of law reviewed for correctness. In re
D.A., 2009 UT 83, ¶ 14, 222 P.3d 1172. Sommerville’s arguments

2
After paying the fine, Sommerville was not charged with
the following too closely offense in either the justice court or the
district court.

20081042‐CA 3 2013 UT App 40
 State v. Sommerville

also implicate application of the Single Criminal Episode Statute,
thus raising an issue of statutory interpretation, which is also a
question of law. State v. Yazzie, 2009 UT 14, ¶ 6, 203 P.3d 984.3

ANALYSIS

I. The Single Criminal Episode Statute

¶7 The Single Criminal Episode Statute is designed to protect
a defendant from multiple trials for offenses that are part of a
“‘single criminal episode,’” which is defined as “all conduct which
is closely related in time and is incident to an attempt or an
accomplishment of a single criminal objective.” Utah Code Ann.
§ 76‐1‐401 (LexisNexis 2012).

¶8 The parties do not dispute that all the offenses—including
the following too closely offense and the DUI offense—are part of
the same criminal episode. The issue is whether the disposition of
the following too closely offense on the citation and the dismissal
of the remaining misdemeanor offenses, including the DUI offense,
in the justice court bars subsequent prosecution of the DUI offense
as a felony in the district court.

¶9 “When interpreting statutes, we first look to the plain
language of the statute and give effect to that language unless it is
ambiguous.” State v. Jeffries, 2009 UT 57, ¶ 7, 217 P.3d 265. “Thus,
a statutory provision should be read literally, unless it would result
in an unreasonable or inoperable result.” Id. “When examining the
statutory language we assume the legislature used each term
advisedly and in accordance with its ordinary meaning.” Id.
(citation and internal quotation marks omitted).

3
Neither party presents any argument regarding the
district court’s dismissal of the misdemeanor offenses. Our
analysis is, therefore, limited to the district court’s refusal to
dismiss the felony DUI offense.

20081042‐CA 4 2013 UT App 40
 State v. Sommerville

¶10 The portions of the Single Criminal Episode Statute that are
most relevant to our analysis are sections 403(1) and 402(2). Section
403(1) provides, “If a defendant has been prosecuted for one or
more offenses arising out of a single criminal episode, a subsequent
prosecution for the same or a different offense arising out of the
same criminal episode is barred if” (1) the “subsequent prosecution
is for an offense that was or should have been tried . . . in the
former prosecution” and (2) the former prosecution resulted in
acquittal or conviction, was improperly terminated, or was
terminated by final order or judgment. Utah Code Ann. § 76‐1‐
403(1); see also id. § 76‐1‐403(2)–(4) (defining acquittal, conviction,
and improper termination). To determine whether an offense
charged in the subsequent prosecution should have been tried in
the former prosecution, section 403(1) refers to section 402(2),
which provides that “unless the court otherwise orders to promote
justice, a defendant shall not be subject to separate trials for
multiple offenses” that are part of a single criminal episode when
(1) “[t]he offenses are within the jurisdiction of a single court” and
(2) “[t]he offenses are known to the prosecuting attorney at the
time the defendant is arraigned on the first information or
indictment.” Id. § 76‐1‐402(2).

¶11 There are two events in the procedural history of this case
that might implicate the Single Criminal Episode Statute so as to
bar subsequent prosecution of the felony DUI offense in the district
court. The first is Sommerville’s payment of the bail schedule fine
on the citation for only the following too closely offense. The
second is the City’s prosecution of Sommerville by information in
the justice court and subsequent voluntary dismissal of the
remaining misdemeanor offenses—in particular, the dismissal of
the misdemeanor DUI offense. We conclude that neither of these
events bars subsequent prosecution of the felony DUI offense in the
district court under the Single Criminal Episode Statute. First, the
issuance and disposition of the citation does not constitute a
prosecution under the Single Criminal Episode Statute. And
second, the prosecution of the misdemeanor DUI offense in the

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 State v. Sommerville

justice court was not concluded in a manner that bars subsequent
prosecution.

A. Citation for the Following Too Closely Offense

¶12 Application of the Single Criminal Episode Statute turns on
the occurrence of former and subsequent prosecutions for offenses
that arise out of the same criminal episode. So whether multiple
prosecutions have occurred is a fundamental question in any
analysis to determine whether the Statute bars prosecution of an
offense arising out of a single criminal episode. Under Utah law,
“all criminal prosecutions whether for felony, misdemeanor or
infraction shall be commenced by the filing of an information or the
return of an indictment.” Utah R. Crim. P. 5(a); see also Utah Code
Ann. § 77‐2‐2 (LexisNexis 2012) (providing that “[f]or the purpose
of this chapter” on prosecution, screening, and diversion,
“‘[c]ommencement of prosecution’ means the filing of an
information or an indictment”). An information4 is “an accusation,
in writing, charging a person with a public offense [and] is
presented, signed, and filed in the office of the clerk where the
prosecution is commenced.” Utah Code Ann. § 77‐1‐3(13); see also
Black’s Law Dictionary 849 (9th ed. 2009) (defining “information” as
“[a] formal criminal charge made by a prosecutor”). Under Utah
law, the filing of an information—and, therefore, the initiation of
a prosecution—requires the involvement of a prosecuting attorney.
See Utah Code Ann. § 77‐2‐1.1 (“The prosecuting attorney shall sign
all informations.”). See also State v. Leary, 646 P.2d 727, 730 (Utah
1982) (explaining “the steps required to properly initiate a
prosecution”), superseded by statute as explained in Tweed v. Bertram,
2003 WL 26098341, at *12 (D. Utah Sept. 8, 2003).

¶13 Although commencement of a prosecution requires the
filing of an information by a prosecutor, a criminal matter may also

4
This case does not involve the filing of an indictment, so
we refer only to the filing of an information in the course of our
analysis.

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 State v. Sommerville

be initiated and disposed of by citation in cases involving
misdemeanors and infractions. Utah Code Ann. § 77‐7‐18
(providing that a “person subject to arrest or prosecution on a
misdemeanor or infraction charge may be issued and delivered a
citation”). Citations may be issued by persons who are not
prosecutors. Id. § 77‐7‐18(1)–(5) (listing persons who may issue
citations). For example, “a peace officer” may issue a citation “in
lieu of or in addition to taking the person into custody.” Id. § 77‐7‐
18(1). A person who receives “a citation . . . shall appear before the
magistrate designated in the citation on or before the time and date
specified in the citation unless the uniform bail schedule . . .
permits forfeiture of bail for the offense charged.” Id. § 77‐7‐19(1).
And where the uniform bail schedule permits, “a person may
voluntarily forfeit bail . . . in any case of a class B misdemeanor or
less,” and such “[v]oluntary forfeiture of bail shall be entered as a
conviction and treated the same as if the accused pleaded guilty.”
Id. § 77‐7‐21(1)(b)–(c); see also id. § 77‐7‐21(1)(a) (“A copy of the
citation . . . that is filed with the magistrate may be used in lieu of
an information to which the person cited may plead guilty or no
contest and be sentenced on or on which bail may be forfeited.”).

¶14 Indeed, a person who is issued a citation is only “subject to
. . . prosecution.” See id. § 77‐7‐18 (emphasis added) (providing that
a “person subject to arrest or prosecution on a misdemeanor or
infraction charge may be issued and delivered a citation”). Thus, if
a citation is disposed of by voluntary forfeiture of bail, no
information is filed and, therefore, no prosecution is initiated. But
if the person cited “pleads not guilty to the offense charged,” then
“[a]n information shall be filed.” Id. § 77‐7‐21(2). And “the
prosecution may proceed on the citation” itself only “[i]f a person
cited waives by written agreement the filing of the information.” Id.
§ 77‐7‐21(3)(a)–(b).

¶15 Accordingly, under Utah law, the initiation of a prosecution
by filing an information is distinguishable from disposition of a
criminal offense on a citation alone. A prosecution is initiated by
the filing of an information by a prosecutor. A citation may be

20081042‐CA 7 2013 UT App 40
 State v. Sommerville

issued by a non‐prosecutor, typically a law enforcement officer.
And though a citation may be used in lieu of an information if the
person cited simply wishes to plead guilty or no contest—for
example, if the person cited pleads guilty by way of voluntary
forfeiture of bail pursuant to the uniform bail schedule—an
information, or a written waiver of an information, must be filed
for the criminal process to move forward.5

¶16 As we have discussed, the Single Criminal Episode Statute
focuses on the occurrence of a former prosecution to determine
whether a subsequent prosecution of an offense that arises out of
the same criminal episode is barred. In particular, section 403(1)
applies where “a defendant has been prosecuted for one or more
offenses arising out of a single criminal episode” and is then
subjected to “a subsequent prosecution for the same or a different
offense arising out of the same criminal episode.” Id. § 76‐1‐403(1)
(emphasis added). Under section 403(1), the subsequent prosecution
is barred if it “is for an offense that was or should have been tried
under [section 402(2)] in the former prosecution” and if “[t]he former
prosecution . . . resulted in conviction” or was otherwise disposed

5
Although a citation “may be used in lieu of an informa‐
tion” so that “the person cited may plead guilty or no contest
and be sentenced or on which bail may be forfeited,” Utah Code
Ann. § 77‐7‐21(1)(a) (LexisNexis 2012), the citation is not an
information. Under Utah law, a citation form may be referred to
on its face as a “citation or information.” Id. § 77‐7‐20(2) (explain‐
ing the information that must be included in a citation). But a
citation must also include “a notice containing substantially the
following language”: “This citation is not an information and
will not be used as an information without your consent.” Id. §
77‐7‐20(2)(j). This is consistent with the requirement that if a
“person cited pleads not guilty to the offense charged” in a
citation, “[a]n information shall be filed.” Id. § 77‐7‐21(2). That
“information is an original pleading,” and “the prosecution may
proceed on the citation” only if the “person cited waives by
written agreement the filing of the information.” Id. § 77‐7‐21(3).

20081042‐CA 8 2013 UT App 40
 State v. Sommerville

of in a manner described by the Statute. Id. § 76‐1‐403(1) (emphasis
added). Thus, the plain language of the Single Criminal Episode
Statute indicates that it applies to formal prosecutions initiated by
the filing of an information.6 The disposition of a criminal offense
on a citation alone therefore does not amount to a “prosecution” for
purposes of the Statute.

¶17 Such a reading of the Single Criminal Episode Statute is
further supported by section 402(2). Section 402(2) is, itself, a
statute that governs when criminal offenses must be joined for trial.
But section 403(1) incorporates section 402(2) to determine whether
an offense that is part of the same criminal episode as another
offense that was previously prosecuted should have been tried in
the former prosecution. Under section 402(2), an offense should
have been tried in the former prosecution when “[t]he offenses are
within the jurisdiction of a single court” and when “[t]he offenses
are known to the prosecuting attorney at the time the defendant is
arraigned on the first information or indictment.” Utah Code Ann.
§ 76‐1‐402(2) (LexisNexis 2012). Section 402(2) thus contemplates
that in the former prosecution, a “prosecuting attorney” would
have been involved at the critical procedural stage where “the
defendant is arraigned on the first information or indictment.” Id.
This is consistent with the general requirement that the initiation
of a prosecution requires the filing of an information by a
prosecutor. Thus, by identifying such a procedural stage as a
critical juncture to determine whether a subsequent prosecution is
barred, section 402(2) seems to preclude its application to
circumstances where a formal prosecution was not initiated by the
filing of an information by a prosecutor. The resolution of an
infraction or misdemeanor on a citation by payment of the bail
schedule fine, as what happened in this case, is just such a
circumstance.

6
Because the question is not raised by the facts of this case,
we do not address whether a defendant’s written waiver of the
filing of an information also falls within the scope of a “prosecu‐
tion” for purposes of the Single Criminal Episode Statute.

20081042‐CA 9 2013 UT App 40
 State v. Sommerville

¶18 In addition to the citation for multiple offenses issued at the
time of his arrest, Sommerville was mailed a second citation for
only the following too closely offense. He promptly paid the bail
schedule fine for that citation. By paying the fine, Sommerville in
effect pleaded guilty to and was convicted of the following too
closely offense. See id. § 77‐7‐21(1) (“Voluntary forfeiture of bail
shall be entered as a conviction and treated the same as if the
accused pleaded guilty.”); see also id. § 76‐1‐403(3) (“There is a
conviction [under section 403(1)] if the prosecution resulted in a
judgment of guilt that has not been reversed, set aside, or vacated
. . . or a plea of guilty [has been] accepted by the court.”). Although
Sommerville’s conviction may satisfy one of the requirements of
the Single Criminal Episode Statute—i.e., that Sommerville was
convicted of this offense, see id. § 76‐1‐403(1)(b)(ii)—that conviction
did not result from a prosecution, as the Statute also requires, see
id. § 76‐1‐403(1) (providing that a subsequent prosecution is barred
if “[t]he former prosecution . . . resulted in conviction”). This is
because, at the time Sommerville paid the fine on the following too
closely offense, no information had yet been filed charging
Sommerville with that offense or any of the other offenses for
which he was cited. See id. § 77‐7‐21(2) (providing that an
information only need be filed “if the person cited pleads not guilty
to the offense charged”). Therefore, disposition of the following too
closely offense on the citation alone did not constitute a
prosecution under the Single Criminal Episode Statute and did not
trigger any bar on subsequent prosecution of the other offenses
arising out of the same criminal episode, including the DUI offense.

B. Prosecution of the Misdemeanor DUI in the Justice Court

¶19 While the following too closely offense was resolved on a
citation, Sommerville was charged by information in the justice
court with the other misdemeanors, including the misdemeanor
DUI. At that point, Sommerville was subject to a formal
prosecution as contemplated by the Single Criminal Episode
Statute. The offenses were later voluntarily dismissed by the City,

20081042‐CA 10 2013 UT App 40
 State v. Sommerville

thus raising the question whether the dismissal of the prosecution
in the justice court was the kind of disposition that would trigger
the Statute’s bar on subsequent prosecution of the DUI offense in
the district court.

¶20 The Single Criminal Episode Statute provides that a
subsequent prosecution is barred if the former prosecution
“resulted in conviction,” “resulted in acquittal,” “was improperly
terminated,” or “was terminated by a final order or judgment for
the defendant that has not been reversed, set aside, or vacated and
that necessarily required a determination inconsistent with a fact
that must be established to secure conviction in the subsequent
prosecution.” Id. § 76‐1‐403(1)(b); see also id. § 76‐1‐403(2)–(4)
(defining acquittal, conviction, and improper termination). Here,
the City voluntarily dismissed the misdemeanor DUI offense on its
own motion, so Sommerville was neither convicted nor acquitted.
See id. § 76‐1‐403(1)(b)(i)–(ii), (2)–(3). Nor is there any suggestion
that the prosecution was improperly terminated, as that phrase is
defined by the Statute. See id. § 76‐1‐403(1)(b)(iii), (4) (“There is an
improper termination of prosecution if the termination takes place
before the verdict, is for reasons not amounting to an acquittal, and
takes place after a jury has been impanelled and sworn to try the
defendant, or, if the jury trial is waived, after the first witness is
sworn.”); see also id. § 76‐1‐403(4)(a)–(c) (providing several
instances where a termination of prosecution is not improper).
Finally, the justice court simply granted the City’s voluntary
motion to dismiss the misdemeanor DUI. Thus, that dismissal did
not involve any “determination inconsistent with a fact that must
be established to secure conviction in the subsequent prosecution.”
Id. § 76‐1‐403(1)(b)(iv). Therefore, because the misdemeanor DUI
offense was not resolved in a way that implicates the Single
Criminal Episode Statute, the prosecution in the justice court does
not bar the subsequent prosecution of the felony DUI offense in the
district court.

¶21 In summary, the disposition of the following too closely
offense on the citation was not a prosecution and, therefore, did not

20081042‐CA 11 2013 UT App 40
 State v. Sommerville

constitute a “former prosecution” that would bar a “subsequent
prosecution” of offenses that arose out of the same criminal
episode under the Single Criminal Episode Statute. Rather, the only
“former prosecution” here occurred when the City charged
Sommerville by information with the remaining misdemeanor
offenses, including the misdemeanor DUI. Because the City’s
voluntary dismissal of that case did not trigger application of the
Single Criminal Episode Statute, the subsequent prosecution of the
DUI offense in the district court is not barred.

II. Double Jeopardy

¶22 Sommerville next argues that double jeopardy bars
subsequent prosecution of the felony DUI in the district court due
to the justice court’s dismissal of the misdemeanor DUI.

¶23 The Double Jeopardy Clause 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; see also U.S. Const. amend. XIV;
Benton v. Maryland, 395 U.S. 784, 794 (1969) (applying the Fifth
Amendment’s double jeopardy protection to the states through the
Fourteenth Amendment’s due process clause).7 Double jeopardy,
therefore, protects a criminal “defendant from (1) a second
prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.” State v. Rudolph, 970 P.2d 1221,
1230 (Utah 1998).

7
Sommerville does not specify whether he is raising his
double jeopardy argument under the United States Constitution,
the Utah Constitution, or both. We therefore conduct our analy‐
sis only under the United States Constitution. See generally State
v. Cahoon, 2009 UT 9, ¶ 8 n.1, 203 P.3d 957 (declining to consider
a state constitutional argument of double jeopardy where the
defendant had not advanced such an argument).

20081042‐CA 12 2013 UT App 40
 State v. Sommerville

¶24 Because “‘jeopardy does not attach until a defendant is put
to trial before the trier of the facts,’” State v. Cahoon, 2009 UT 9,
¶ 12, 203 P.3d 957 (quoting Serfass v. United States, 420 U.S. 377, 391
(1975)), double jeopardy “does not attach at pretrial proceedings,”
id. ¶ 13; see also id. ¶ 13 n.15 (reasoning that “[t]he rule that double
jeopardy protects against a second prosecution for the same offense
after acquittal must be read in combination with the rule that”
jeopardy only attaches when a defendant is put to trial before the
trier of fact, meaning “that pretrial determinations are not
acquittals for purposes of double jeopardy” (citations and internal
quotation marks omitted)); State v. Byrns, 911 P.2d 981, 984 (Utah
Ct. App. 1995) (“A defendant is not placed in jeopardy until a jury
is impaneled and sworn, or if a bench trial, the first witness is
sworn. Since [the] defendant’s case was dismissed prior to trial . . . ,
he was never placed in jeopardy in the primary sense.” (citations
omitted)).

¶25 Here, the misdemeanor DUI offense was voluntarily
dismissed by the City. At the time of dismissal, jeopardy had not
attached to the DUI offense, whether classified as a misdemeanor
or a felony, because it was dismissed during pretrial proceedings,
before Sommerville had been put to trial before the finder of fact.8
See Cahoon, 2009 UT 9, ¶¶ 12–13.

¶26 Sommerville argues, however, that this case falls within an
exception to the principle that double jeopardy only attaches when
a defendant is tried before the finder of fact. To support this
assertion, Sommerville relies on State v. Cahoon (Cahoon I), 2007 UT

8
“[J]eopardy [also] attaches when a court accepts a guilty
plea.” State v. Bernert, 2004 UT App 321, ¶ 8, 100 P.3d 221 (stating
further that the entry of the plea and not the imposition of the
sentence is the critical moment for determining when jeopardy
attaches). Under the facts of this case, double jeopardy arguably
has attached only to the following too closely offense—the sole
charge for which Sommerville was convicted due to his payment
of the designated fine, which is necessarily the entry of a guilty
plea. See supra ¶ 18.

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 State v. Sommerville

App 269, 167 P.3d 533, rev’d, 2009 UT 9, 203 P.3d 957, where the
Utah Court of Appeals concluded that double jeopardy precluded
the State from refiling charges that had previously been dismissed
before trial because the case had been filed beyond the applicable
statute of limitations. Id. ¶¶ 4, 8. But the Utah Supreme Court
reversed that decision in State v. Cahoon (Cahoon II), 2009 UT 9, 203
P.3d 957, concluding that double “jeopardy does not attach at
pretrial proceedings.” Id. ¶¶ 3, 12–13. The supreme court’s decision
in Cahoon II appears to establish a bright‐line rule that double
jeopardy attaches only when a “defendant is put to trial before the
trier of the facts.” Id. ¶ 12 (footnote citation and internal quotation
marks omitted). And the supreme court explained that, based on
its ruling, “a criminal defendant who has not yet been on trial is
protected against a subsequent prosecution by collateral estoppel,
not double jeopardy.” Id. ¶ 15; see also Byrns, 911 P.2d at 984
(“Under collateral estoppel principles, the pretrial disposition of a
case in a prior prosecution may be sufficient to bar a subsequent
prosecution.”).

¶27 As we will explain, collateral estoppel is a component of the
res judicata doctrine, under which Sommerville has also sought
relief.9 Accordingly, we next address Sommerville’s potential
remedy under the principles of res judicata.

III. Res Judicata

9
Notably, collateral estoppel principles are considered to
be “embodied in the Fifth Amendment guarantee against double
jeopardy.” Ashe v. Swenson, 397 U.S. 436, 445 & n.10 (1970); see
also State v. Byrns, 911 P.2d 981, 984 (Utah Ct. App. 1995). How‐
ever, because the collateral estoppel and double jeopardy issues
have been presented to us separately and each involve distinct
analyses, and because Sommerville has generally relied on the
doctrine of res judicata rather than on collateral estoppel specifi‐
cally, we have elected to analyze the res judicata issue separately
from the double jeopardy analysis.

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 State v. Sommerville

¶28 Sommerville next argues that the justice court’s dismissal of
the misdemeanor DUI offense bars subsequent prosecution of the
felony DUI offense in the district court based on the principles of
res judicata.

¶29 Sometime after Sommerville was charged by information in
the justice court, the City voluntarily moved to dismiss the
misdemeanor offenses. In support of its motion to dismiss, the City
explained that it believed that the charged misdemeanor offenses
and the following too closely offense “arise from a single criminal
episode” and, “[t]herefore, further prosecution of this case would
be barred by double jeopardy.” On the City’s motion, the justice
court dismissed the misdemeanor offenses. The justice court’s
order is unavailable and is not included in the record, so it is not
possible to determine what the actual order stated.10 But attached
to the City’s motion to dismiss, which is a part of the record, is an
unsigned and undated order, which the City apparently provided
for the justice court to sign were the motion granted. Cf. Utah R.
Civ. P. 7(c) (“A party may attach a proposed order to its initial
memorandum.”). In the absence of an order in the record, there is
no reason to suppose that the court did not use the proposed order
that the City provided. That proposed order simply states, “IT IS
HEREBY ORDERED that the above matter be dismissed based on
the motion of the Murray City Prosecutor.”

¶30 “The doctrine of res judicata embraces two distinct branches:
claim preclusion and issue preclusion.” Mack v. Utah State Dep’t of
Commerce, 2009 UT 47, ¶ 29, 221 P.3d 194 (citation and internal
quotation marks omitted). “[C]laim preclusion corresponds to
causes of action,” id. (alteration in original), and “bars a party from
prosecuting in a subsequent action a claim that has been fully
litigated previously,” In re D.A., 2009 UT 83, ¶ 33, 222 P.3d 1172
(citation and internal quotation marks omitted); see also Mack, 2009

10
In his reply brief, Sommerville explained that the order
dismissing the misdemeanor offenses was destroyed before it
could be obtained for purposes of this appeal and for that reason
is not included in the record.

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 State v. Sommerville

UT 47, ¶ 29 (providing that a claim is precluded from relitigation
if (1) “both cases . . . involve the same parties or their privies,” (2)
“the claim that is alleged to be barred” was “presented in the first
suit” or “could and should have been raised in the first action,” and
(3) “the first suit . . . resulted in a final judgment on the merits”
(citation and internal quotation marks omitted)). “Issue preclusion,
which is also known as collateral estoppel,” Oman v. Davis Sch.
Dist., 2008 UT 70, ¶ 28, 194 P.3d 956, “corresponds to the facts and
issues underlying causes of action,” Mack, 2009 UT 47, ¶ 29
(citation and internal quotation marks omitted), and “‘prevents
parties or their privies from relitigating facts and issues in [a]
second suit that were fully litigated in the first suit,’” Cahoon II,
2009 UT 9, ¶ 14 n.23, 203 P.3d 957 (quoting Oman, 2008 UT 70, ¶
28); see also Oman, 2008 UT 70, ¶ 29 (providing that relitigation of
a fact or issue is precluded if (1) “the party against whom issue
preclusion is asserted [was] a party to or in privity with a party to
the prior adjudication,” (2) “the issue decided in the prior
adjudication [is] identical to the one presented in the instant
action,” (3) “the issue in the first action [was] completely, fully, and
fairly litigated,” and (4) “the first suit . . . resulted in a final
judgment on the merits” (citation and internal quotation marks
omitted)).

¶31 Relying generally on the res judicata doctrine, Sommerville
argues that the justice court’s dismissal of the misdemeanor DUI
offense bars subsequent prosecution of the felony DUI offense in
the district court. According to Sommerville, the misdemeanor DUI
and the felony DUI are essentially the same offense or claim,
requiring proof of similar facts; and he seems to assert that the
basis for the City’s voluntary dismissal—i.e., that prosecution of
the DUI offense is barred by double jeopardy because it arose out
of the same criminal episode as the following too closely
offense—gives res judicata effect to that substantive legal
conclusion as applied to those particular claims and the underlying
facts. Sommerville does not specify with any particularity which
branch of res judicata he relies on, but both claim preclusion and
issue preclusion require that “the first suit must have resulted in a
final judgment on the merits.” Mack, 2009 UT 47, ¶ 29 (citation and

20081042‐CA 16 2013 UT App 40
 State v. Sommerville

internal quotation marks omitted) (stating the elements of claim
preclusion); accord Oman, 2008 UT 70, ¶ 29 (stating the elements of
issue preclusion). Sommerville has not convinced us that the City’s
voluntary dismissal of the misdemeanor DUI offense in the justice
court was a final judgment on the merits. As a result, res judicata
does not bar subsequent prosecution of the felony DUI in the
district court, under either claim preclusion or issue preclusion.

¶32 “‘“[O]n the merits” is a term of art that means that a
judgment is rendered only after a court has evaluated the relevant
evidence and the parties’ substantive arguments.’” In re D.A., 2009
UT 83, ¶ 37 (quoting Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 42
n.6, 44 P.3d 663). “As a technical legal term, ‘merits’ has been
defined as a matter of substance, as distinguished from a matter of
form.” State v. Ruscetta, 742 P.2d 114, 116 (Utah Ct. App. 1987). And
“[i]n the context of res judicata, ‘merits’ has been interpreted to
mean real or substantial grounds of action or defense as
distinguished from matters of practice, procedure, jurisdiction or
form.” Id. “A judgment is upon the merits when it amounts to a
declaration of the law as to the respective rights and duties of the
parties based on . . . facts and evidence upon which the rights of
recovery depend, irrespective of formal, technical, or dilatory
objections or contentions.” Id. (omission in original) (citation and
internal quotation marks omitted). “To be on the merits, a
judgment does not have to proceed to trial. Rather, a judgment on
the merits may be made at any stage of the litigation, so long as . . .
[the judgment rendered is] based upon a proper application of the
relevant law to the facts of the case.” Miller, 2002 UT 6, ¶ 42 n.6. See,
e.g., In re D.A., 2009 UT 83, ¶ 37 (explaining that “a claim dismissed
for lack of subject matter jurisdiction does not constitute an
adjudication on the merits,” and a “‘[d]efault for inaction of a party
involves no more discussion of the merits than a judgment based
on jurisdiction’” because “‘[b]oth are matters of form rather than
considerations of substance’” (first alteration in original) (quoting
Ruscetta, 742 P.2d at 116)); State v. Clark, 913 P.2d 360, 362 (Utah Ct.
App. 1996) (explaining that “a dismissal of an appeal for lack of
prosecution does not, by itself, constitute an adjudication on the
merits”). See also Restatement (Second) of Judgments § 13 cmt. g

20081042‐CA 17 2013 UT App 40
 State v. Sommerville

(identifying various factors that can be used to analyze whether a
judgment is final for purposes of res judicata).

¶33 For collateral estoppel or issue preclusion to apply, in
addition to a final judgment on the merits “the issue in the first
action must have been completely, fully, and fairly litigated.”
Oman, 2008 UT 70, ¶ 29. The Restatement (Second) of Judgments
explains these requirements more fully, providing that “[w]hen an
issue of fact or law is actually litigated and determined by a valid
and final judgment . . . , the determination is conclusive in a
subsequent action between the parties.” Restatement (Second) of
Judgments § 27. An “issue is actually litigated” when it “is
properly raised . . . and is submitted for determination, and is
determined.” Id. § 27 cmt. d. For example, an issue is likely actually
litigated “on a motion to dismiss for failure to state a claim, a
motion for judgment on the pleadings, a motion for summary
judgment . . . , [and] a motion for directed verdict.” Id. In contrast,
an issue is likely not actually litigated where “a judgment [is]
entered by confession, consent, or default.” Id. § 27 cmt. e.

¶34 Here, the misdemeanor DUI was dismissed by the justice
court on the City’s own motion.11 Certainly the City’s basis for its

11
In its motion to dismiss, the City explained that it be‐
lieved that the following too closely offense and the other misde‐
meanor offenses “arise from a single criminal episode” and,
“[t]herefore, further prosecution of this case would be barred by
double jeopardy.” In asserting these bases, the City conflated the
concepts underlying the Single Criminal Episode Statute and
double jeopardy, for although the two are related, the Single
Criminal Episode Statute provides more expansive protection
than double jeopardy. See State v. Strader, 902 P.2d 638, 641–42
(Utah Ct. App. 1995) (distinguishing the Single Criminal Episode
Statute protections from double jeopardy protections). The most
notable distinction is that the Single Criminal Episode Statute
bars multiple prosecutions of offenses that arise out of the same
(continued...)

20081042‐CA 18 2013 UT App 40
 State v. Sommerville

motion has nominally substantive. But under the facts of this case,
the claims, facts, and underlying issues were not actually litigated
because the justice court made no “application of the relevant law
to the facts of the case,” see Miller, 2002 UT 6, ¶ 42 n.6, and made no
“declaration of the law as to the respective rights and duties of the
parties based on . . . facts and evidence,” Ruscetta, 742 P.2d at 116
(omission in original) (citation and internal quotation marks
omitted). Rather, the justice court simply dismissed the matter on
the voluntary and unopposed motion of the City, accepting the
City’s bare representation of the basis for the dismissal without
further consideration. On these facts, the voluntary dismissal bears
far more resemblance to an issue or claim that is resolved by
consent or default than an issue or claim that is actually litigated.
Compare Restatement (Second) of Judgments § 27 cmt. e, with id.
§ 27 cmt. d.12 For these reasons, we conclude that under the facts of

11
(...continued)
criminal episode, while double jeopardy bars multiple prosecu‐
tions of the same offense. Id. Further, as we have discussed,
jeopardy “does not attach at pretrial proceedings” but only
attaches when “a defendant is put to trial before the trier of the
facts.” State v. Cahoon (Cahoon II), 2009 UT 9, ¶¶ 12–13, 203 P.3d
957 (footnote citation and internal quotation marks omitted). The
Single Criminal Episode Statute, however, may bar subsequent
prosecutions based on former prosecutions of offenses arising
from a single criminal episode that were disposed of in pretrial
proceedings, see Utah Code Ann. § 76‐1‐403(1) (LexisNexis 2012),
but we have already concluded that did not happen here.
12
In arguing that prosecution of the felony DUI offense is
barred by res judicata, Sommerville asserts that the justice
court’s dismissal of the misdemeanor DUI was a dismissal with
prejudice. As we have explained, the justice court’s order
dismissing the misdemeanor offenses is not included in the
record, so there is insufficient information in the record to
determine with any certainty whether the dismissal was with or
(continued...)

20081042‐CA 19 2013 UT App 40
 State v. Sommerville

this case, the justice court’s dismissal of the misdemeanor DUI
offense is not a final judgment on the merits. Thus, the City’s stated
basis for its voluntary motion to dismiss is not res judicata as to
that substantive conclusion, and the dismissal of the misdemeanor
DUI by the justice court does not have a preclusive effect on a
subsequent prosecution of the felony DUI in the district court. We
therefore conclude that res judicata does not bar subsequent
prosecution of the felony DUI offense in the district court.

CONCLUSION

¶35 We conclude that subsequent prosecution of the felony DUI
offense in the district court is not barred by the Single Criminal
Episode Statute, double jeopardy, or res judicata.

¶36 We affirm.

12
(...continued)
without prejudice. However, the information that is included in
the record—namely, the order attached to the City’s motion to
dismiss—does not specify whether the dismissal is with or
without prejudice, though the sparseness of the order’s language
seems indicative that the dismissal is without prejudice rather
than with prejudice. See, e.g., Utah R. Crim. P. 25(d)–(e)
(explaining in criminal proceedings when a dismissal is or is not
a bar to subsequent prosecution); cf. Utah R. Civ. P. 41(a)(1),
(a)(2)(ii) (providing that when an action or claim is voluntarily
dismissed by either the plaintiff or the court, “[u]nless otherwise
specified in the order, a dismissal . . . is without prejudice”).

20081042‐CA 20 2013 UT App 40