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Washington v. Laviollette

February 22, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
DONALD TIMOTHY LAVIOLLETTE, APPELLANT



Alexander, J. Petrich, A.c.j., and Morgan, J., concur.

Author: Alexander

Donald Laviollette appeals a second degree burglary conviction, contending on appeal (1) that his constitutional right to avoid two trials for the same offense was violated and (2) that the trial court erred in denying a motion to suppress from evidence a jacket seized during his arrest on an outstanding warrant. Because we conclude that Laviollette's double jeopardy rights, as guaranteed by the fifth amendment to the United States Constitution, were violated, it is unnecessary for us to discuss the other issue. We reverse.

Donald Laviollette was a passenger in an automobile that was stopped for a traffic violation. A check by the arresting officer revealed an outstanding warrant for Laviollette's arrest. Consequently, Laviollette was taken into custody and booked into the Clark County Jail. After booking, the police discovered that a black leather jacket that Laviollette was wearing at the time of his arrest had been stolen from lockers at the VMG building in Vancouver; the police seized the jacket.

Laviollette was charged in the Clark County District Court with four counts of theft in the third degree relating to thefts of property from the VMG building. He pleaded guilty to the theft charges and was sentenced. Laviollette was also charged with second degree burglary in Clark County Superior Court. Following his guilty plea to the theft charges, the burglary case was tried to the court on

facts stipulated to by Laviollette and the State. One of the stipulated facts was as follows:

12. The defendant was charged by Citation with four counts of Theft in the Third Degree and entered pleas of guilty to those offenses on March 14th, 1989. The four counts of Theft in the Third Degree pertain to the thefts from four of the lockers contained in the VMG building and were the underlying crimes upon which the intent to commit a crime was based.

(Italics ours.) Laviollette was found guilty of the burglary and sentenced to 14 months in prison.

Laviollette, citing Grady v. Corbin, U.S. , 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990), contends that because the theft charges and the burglary charge would subject him to two separate convictions for the same criminal conduct, double jeopardy protections bar the subsequent prosecution for burglary.

The State argues that double jeopardy analysis is limited to a lesser included offense analysis, i.e., that the State may not prosecute a person once for a greater offense and again for a lesser included offense. State v. Escobar, 30 Wash. App. 131, 134, 633 P.2d 100 (1981) (citing Brown v. Ohio, 432 U.S. 161, 166, 53 L. Ed. 2d 194, 97 S. Ct. 2221, 2225 (1977); Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932)).

Under Blockburger, a subsequent prosecution is barred unless "each provision [of the statute] requires proof of [an additional] fact which the other does not." State v. Escobar, 30 Wash. App. at 134 (quoting Brown v. Ohio, supra). The Blockburger test focuses on "the proof necessary to establish the statutory elements of each offense" and does not preclude charging more than one offense arising out of the same transaction or event. Escobar, 30 Wash. App. at 134 (citing State v. Roybal, 82 Wash. 2d 577, 578, 512 P.2d 718 (1973)). If we were to apply Blockburger to this situation we would agree with the State that no double jeopardy violation occurred. But, as Laviollette points out, we must do more than Blockburger requires.

[1] In a line of cases including Illinois v. Vitalle, 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980), and most recently in Grady v. Corbin, supra, the United States Supreme Court has expanded the limitations against a second prosecution for an offense arising out of the same event. A later prosecution will be barred if, "to establish an essential element of an offense charged in that prosecution, [the government] will prove conduct that ...


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