with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting.
The controlling issue in this case is whether respondent’s failure to reduce speed to avoid a collision, in violation of *422§ 11-601 (a) of the Illinois Motor Vehicle Code,1 was a lesser offense included within the greater offense of killing a person by the reckless “driving of a motor vehicle,” in violation of § 9-3 (b) of the Illinois Criminal Code.2 The Illinois Supreme Court held that it was and that, because respondent had already been convicted on the lesser charge, the State was barred by the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment, from prosecuting him on the greater charge.
There are two separate reasons, each of which is sufficient in itself, for affirming the judgment of the Illinois Supreme Court. - First, after applying the test set forth in Brown v. Ohio, 432 U. S. 161, the Illinois Supreme Court made a finding that failing to reduce speed to avoid a collision is a lesser-included offense of reckless homicide as a matter of state law. This Court clearly has a duty to respect that finding. Second, even if the dissenting members of the Illinois Supreme Court were correct in their view that, as a matter of state law, the traffic offense is not necessarily a lesser-included *423offense in every reckless homicide prosecution, the Double Jeopardy Clause bars the homicide prosecution under the particular facts of this case. For, even if the State intended to rely on evidence other than respondent’s failure to reduce speed to establish the element of reckless driving necessary for a homicide conviction, the prosecutor’s failure to apprise the respondent and the court of such a theory at some point in the lengthy proceedings on the double jeopardy issue should bar the second trial in this case.
I
Relying on Blockburger v. United States, 284 U. S. 299, the Court holds that the question the Illinois Supreme Court should have addressed in this case was whether proof of reckless homicide by vehicle will always, in each and every case, establish the defendant’s guilt of the traffic offense as well. If not, the Court states that the traffic offense is not necessarily the “same offense” for double jeopardy purposes and therefore the second prosecution may not be barred by the Double Jeopardy Clause.3 Ante, at 419. The Court then goes on to discuss the position of the dissenting justices in the Illinois Supreme Court that it is theoretically possible for an Illinois prosecutor to prove a charge of reckless homicide by vehicle without proving a failure to reduce speed in order to avoid a collision. Because it finds the majority’s response to this argument “cryptic,” the Court refuses to accept the Illinois court’s clear determination that the traffic offense is a lesser-included offense of reckless homicide; instead, it reverses and remands for a new determination as to whether “under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.” 4
*424I cannot agree that this is an appropriate disposition. As the Court itself recognizes, it is not the province of this or any other federal court to tell the State of Illinois what is or is not a lesser-included offense under state law.5 To the extent that this Court has any role at all, it is to ensure that the States apply the proper analytic framework insofar as they rely on the Double Jeopardy Clause of the Federal Constitution.-'Unlike the Court, I have no doubt that in this case the Illinois Supreme Court did apply the proper test.
As the dissenting justices in the Illinois Supreme Court pointed out at some length, the Illinois courts are hardly unfamiliar with the Blockburger test, having consistently applied it for many years in determining whether two offenses are the same for purposes of either the Double Jeopardy Clause or the State’s own compulsory joinder statute. In re Vitale, 71 Ill. 2d 229, 244-245, 375 N. E. 2d 87, 93-94 (1978). In this case the majority of the Illinois court did not purport *425to deviate from that test. On the contrary, it relied heavily on this Court’s opinion in Brown v. Ohio, supra, which in turn relied upon Blockburger.
Thus, after examining the statutory definitions of the two crimes at issue in this case, without reference to the particular facts of this case, the Illinois Supreme Court concluded:
“As is usually the situation between greater and lesser included offenses, the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter. Accordingly, for purposes of the double jeopardy clause, the greater offense is by definition the ‘same’ as the lesser offense included within it.” 71 Ill. 2d, at 239, 375 N. E. 2d, at 91.
In so holding, the court made the same finding as this Court did in Brown v. Ohio:
“Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute ‘the same statutory offense’ within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that ‘each [statute] requires proof of a fact which the other does not.’ 284 U. S., at 304. As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft. The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” 432 U. S., at 168.
Having made the finding required by Brown v. Ohio, based on its interpretation of its own law, the Illinois Supreme Court should not now be required to go through the process all over again simply to assure this Court that it really meant what it plainly said.
*426II
In Part IV of its opinion the Court states that, even if the Illinois Supreme Court should hold on remand that failure to reduce speed is not always a lesser-included offense as a matter of state law, respondent will still have a “substantial” double jeopardy claim if the State finds it necessary to rely on his failure to reduce speed in order to sustain its manslaughter case. In my opinion such a claim would not merely be “substantial”; it would be dispositive.
In Harris v. Oklahoma, 433 U. S. 682, we held that a conviction on a felony-murder charge barred a subsequent prosecution for robbery, where the robbery had been used to establish the requisite intent on the murder charge. Cf. Whalen v. United States, 445 U. S. 684. Since it was theoretically possible that a different felony could have supported the murder charge, such a result may not have been required by a literal application of the Blockburger test, see Whalen v. United States, supra, at 708-711 (Rehnquist, J., dissenting) . However, the entire Court agreed that it was required by the Double Jeopardy Clause. In this case, it is equally clear that the State could not use respondent's failure to reduce speed to avoid a collision as the reckless act necessary to establish reckless homicide by vehicle, even if theoretically his recklessness could be proved in some other way.
Throughout the five years that this case has been in litigation, the State has apparently not seen fit to reveal the basis of its homicide prosecution. The Court does not view this omission as an important one. On the contrary, its opinion implies that the State may proceed to trial before a deter-. mination is made on respondent’s double jeopardy claim. But surely such a procedure is inconsistent with the Double Jeopardy Clause, which was specifically designed to protect the citizen from multiple trials. The vital interest in avoiding an unlawful second trial led the Court in Abney v. United States, 431 U. S. 651, to allow an appeal in advance of trial *427in order to assure the defendant that the substance of his constitutional right to be protected against double jeopardy would not be lost before his plea could be vindicated. In that case the Court emphasized that “the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” Id., at 660-661 (emphasis in original). Continuing, the Court stated:
“Because of this focus on the ‘risk’ of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr. Justice Black aptly described the purpose of the Clause:
“ 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ Green [v. United States, 355 U. S. 184,] 187-188.
. . [I]f a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” Id., at 661-662. (Emphasis in original.)
If a defendant is entitled to have an appellate court rule on his double jeopardy claim in advance of trial, he is surely entitled to a definitive ruling by the trial court in advance *428of trial. Since the State has not provided the respondent with notice of any basis for the prosecution that does not depend upon proving, for the second time, a careless failure to reduce speed, I would not require this respondent to stand trial again.
I respectfully dissent.
Illinois Rev. Stat., eh. 95%, § 11-601 (a) (1979), provides:
“No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.’’ (Emphasis supplied.)
“If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide." Ill. Rev. Stat., ch. 38, § 9-3 (b) (1973).
See the discussion of Part IV of the Court’s opinion, infra, at 426.
“The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a *424careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.” Ante, at 419.
Despite its apparent agreement with the dissenters’ reading of the Illinois statutes, see ibid., the Court does not hold that the Illinois Supreme Court is foreclosed from concluding on remand that failure to reduce speed is a lesser-included offense of reckless homicide by vehicle. On the contrary, the Court states:
“If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the 'same’ under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio." Ante, at 419-420.
See also Brown v. Ohio, 432 U. S. 161, 167, where the Court reiterated that state courts “ ‘have the final authority to interpret . . . that State’s legislation.’ Garner v. Louisiana, 368 U. S. 157, 169 (1961),” and thus accepted as “authoritative” the Ohio courts’ definition of the elements of the two offenses.