No person shall be twice put in jeopardy for the same crime. The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment. When the indictment, information or complaint charges different crimes or different degrees of the same crime and a new trial is granted the accused, he may not again be tried for a crime or degree of the crime greater than the one of which he was originally convicted.

History: 1953 Comp., § 40A-1-10, enacted by Laws 1963, ch. 303, § 1-10.

Cross references. — For constitutional provision on former jeopardy, see N.M. Const., art. II, § 15.

I. GENERAL CONSIDERATION.

Waiver of rights. — Double jeopardy rights may not be waived and may be raised by the accused at any stage of a criminal prosecution either before or after judgment. Defendant may raise the issue of violation of double jeopardy even though he expressly waived the issue during a plea hearing. State v. Jackson, 1993-NMCA-092, 116 N.M. 130, 860 P.2d 772.

Finality of decision. — The trial court's oral and written statements during the proceedings did not constitute acquittals and therefore there was no violation of double jeopardy protections when the court subsequently found the defendant guilty in the same proceedings. State v. Vaughn, 2005-NMCA-076, 137 N.M. 674, 114 P.3d 354, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Removal of child from the custody of the child's parents pending an investigation of child abuse is not a punishment. — Where the children, youth and families department investigated defendants for child abuse and found the allegations to be unsubstantiated; a tribal court held a custody hearing on the same allegations and ultimately returned the child to defendants; the defendant who was the primary caretaker agreed to temporary guardianship of the child during the investigation and tribal court proceeding; and the removal of the child from the custody of defendants for fourteen months during the child abuse investigation by the department and the custody proceeding in tribal court was not intended to punish defendants, the state's prosecution of defendants for criminal child abuse did not violate double jeopardy. State v. Diggs, 2009-NMCA-099, 147 N.M. 122, 217 P.3d 608, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Identical counts and jury instructions. — Where multiple counts of criminal sexual penetration of a minor in the indictment and the counts in the jury instructions were carbon-copy counts of each other and where the child's testimony distinguished facts for each count and the defendant admitted to having sexual intercourse with the child on several occasions, there was sufficient evidence from which a jury could find separate incidents of criminal sexual penetration and there was no violation of double jeopardy. State v. Martinez, 2007-NMCA-160, 143 N.M. 96, 173 P.3d 18, cert. denied, 2007-NMCERT-011, 143 N.M. 155, 173 P.3d 762.

Constitutional provision. — This section provides the same protections as N.M. Const., art. II, § 15, although those protections are more clearly stated in the statute. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

Reinstatement of convictions. — Where one of two otherwise valid convictions must be vacated to avoid violation of double jeopardy protections, the conviction carrying the shorter sentence must be vacated. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

Where defendant and defendant's companions were accosted by a rival gang in front of defendant's family home, guns were pulled on both sides and defendant's sibling was severely wounded by gunshots in the leg and abdomen; while defendant's group were trying to help defendant's sibling in the driveway and stop the bleeding from the gunshot wounds, the person in the rival gang who had been shooting at defendant and defendant's companions returned in a Ford Expedition; when defendant saw gunfire coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle and began shooting at the Expedition; the driver of Expedition was shot seven times and died; the jury convicted defendant of voluntary manslaughter and shooting into a motor vehicle resulting in great bodily harm, the conviction for voluntary manslaughter should be vacated and the conviction for shooting into a motor vehicle upheld because the conviction for shooting into a motor vehicle carried a more severe potential sentence. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

State protections broader than those of federal constitution. — The differences between N.M. Const., art. II, § 15, and this section suggest that the legislature was attempting to articulate the protections of the state constitution as being broader than those of the federal constitution. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

When section applied. — The double jeopardy clause only comes to the aid of defendants subjected to multiple prosecutions for the identical offense, or in such situations in which collateral estoppel, the concept of lesser included offenses or the same evidence test apply. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

This section precludes retrial of a greater offense only after an acquittal of that offense and does not address the situation in which the state prosecutes various crimes or degrees of crimes and the jury returns a verdict on less than all of the crimes charged. State v. Martinez, 1995-NMSC-064, 120 N.M. 677, 905 P.2d 715.

The New Mexico supreme court's statement in State v. Martinez, 1995-NMSC-064, 120 N.M. 677, 905 P.2d 715, that this section precludes a retrial of a greater offense only after an acquittal of that offense, was not intended to introduce a new principle of law into its double jeopardy jurisprudence, but rather was a summary of existing case law. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

This section precludes a retrial of a greater offense only after an (implied or explicit) acquittal of that offense, provided that the greater offense was charged in the first trial. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

Section applies to children's court proceedings involving delinquent child. State v. Doe, 1977-NMCA-058, 90 N.M. 536, 565 P.2d 1053.

Acquittal of accused protects against second prosecution for same crime. Borrego v. Territory, 1896-NMSC-011, 8 N.M. 446, 46 P. 349, aff'd sub nom. Gonzales v. Cunningham, 164 U.S. 612, 17 S. Ct. 182, 41 L. Ed. 572 (1896).

No jeopardy if information fails to state offense. — Where information failed to state an offense at time of arraignment and entry of plea of not guilty, defendant was not placed in jeopardy. State v. Ardovino, 1951-NMSC-018, 55 N.M. 161, 228 P.2d 947.

No jeopardy if court lacks jurisdiction. — Since marijuana is not defined as a narcotic drug under the relevant statutes, a charge of violating Section 30-31-20 NMSA 1978 (trafficking) in the first proceeding brought against defendant for selling marijuana did not charge defendant with a public offense. Hence, as the court lacked jurisdiction in the first proceeding, there was no basis for a claim of double jeopardy where defendant was later charged under the proper section. State v. Mabrey, 1975-NMCA-098, 88 N.M. 227, 539 P.2d 617.

No jeopardy on retrial after appeal. — The former jeopardy clause does not preclude retrial of defendant whose sentence is set aside because of error in the proceedings leading to sentence or conviction. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768; State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Constitutional protection against double jeopardy does not prevent a second trial for the same offense where the defendant himself, by an appeal, has invoked the action which resulted in the second trial. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768.

No jeopardy after collateral attack. — Where a conviction is overturned on collateral rather than direct attack, retrial is not precluded on double jeopardy grounds. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Waiver of defense by plea agreement. — The defendant waived his double jeopardy defense by entering a plea agreement which provided that the state could pursue additional habitual offender proceedings to enhance the defendant's sentence in the event his probation was revoked or he otherwise failed to fulfill his obligations under the agreement, and the provision precluding waiver of a double jeopardy defense did not apply to prevent waiver in such case. Montoya v. New Mexico, 55 F.3d 1496 (10th Cir. 1995).

Charging in alternative. — The concept of double jeopardy was not involved in charging defendant with fraud or in the alternative embezzlement since the charges were in the alternative; nor were the concepts of included offenses, same evidence or merger. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.

Trial de novo on alternative means of committing offense did not violate double jeopardy. — When a defendant is convicted based on one of two alternative means of committing a single crime, there is not an implied acquittal of the other alternative unless the conviction logically excludes guilt of the other alternative; if there is no implied acquittal, there is no constitutional prohibition against retrial of both alternatives after a conviction is set aside. State v. Ben, 2015-NMCA-118, cert. denied, 2015-NMCERT-011.

Where defendant was charged in magistrate court with multiple means of committing DWI, per se DWI and impaired to the slightest degree, and was convicted on the per se theory of DWI, defendant's double jeopardy rights were not violated when he was retried de novo on the impaired theory in the district court, because his conviction on the per se theory of DWI was not logically inconsistent with a finding of impaired DWI. State v. Ben, 2015-NMCA-118, cert. denied, 2015-NMCERT-011.

Prosecution and forfeiture generally. — State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, does not stand for the proposition that a criminal prosecution may never advance independently of a forfeiture proceeding. Rather, Nunez appears to mandate only proper initiation of the dual penalty proceeding, meaning that the criminal charges and the forfeiture proceeding must be merged or consolidated prior to the occurrence of any event that signals the attachment of jeopardy. State v. Esparza, 2003-NMCA-075, 133 N.M. 772, 70 P.3d 762, cert. denied, 133 N.M. 771, 70 P.3d 761.

Civil penalty and criminal prosecution under the Voter Action Act. — The civil penalty authorized under Section 1-19A-17 NMSA 1978 is remedial and does not constitute punishment for double jeopardy purposes. The imposition of a civil penalty does not bar a subsequent criminal prosecution under the Voter Action Act for the same conduct for which the secretary of state assessed the civil penalty. State v. Block, 2011-NMCA-101, 150 N.M. 598, 263 P.3d 940.

Where the secretary of state assessed civil penalties against defendant for violations of the Voter Action Act and the attorney general subsequently filed criminal charges against defendant for the same violations of the act, the assessment of the civil penalties and the subsequent criminal prosecution did not violate double jeopardy. State v. Block, 2011-NMCA-101, 150 N.M. 598, 263 P.3d 940.

Civil forfeiture under Controlled Substances Act. — Because civil forfeiture under the Controlled Substances Act is punishment for double-jeopardy purposes under the New Mexico constitution, all forfeiture complaints and criminal charges for violations of the Controlled Substances Act may both be brought only in a single, bifurcated proceeding. State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264.

The legislature is not prevented from assessing both civil and criminal penalties for violations of the Controlled Substances Act, Sections 30-31-1 to 30-31-41 NMSA 1978. State v. Esparza, 2003-NMCA-075, 133 N.M. 772, 70 P.3d 762, cert. denied, 133 N.M. 771, 70 P.3d 761.

Civil penalties and criminal prosecution under Securities Act. — Criminal prosecutions under the Securities Act, Sections 58-13B-1 to 58-13B-57 NMSA 1978 (now Sections 58-13C-101 to 58-13C-701 NMSA 1978), following administratively imposed civil penalties under that Act, do not place defendants in double jeopardy under N.M. Const., art. II, § 15, or under this section. State v. Kirby, 2003-NMCA-074, 133 N.M. 782, 70 P.3d 772, cert. denied, 133 N.M. 771, 70 P.3d 761.

City ordinance. — The clear intent and purpose of the city ordinance is to establish a remedial measure to protect the public from those drivers who persist in driving after license revocation and from multiple driving while intoxicated offenses; therefore, civil forfeiture proceedings are not punitive, and the drivers are not subjected to double jeopardy. City of Albuquerque ex rel. Albuquerque Police Dep't v. One (1) 1984 White Chevy UT., 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94.

Trial de novo after magistrate court conviction. — In a trial de novo resulting from a defendant's appeal of a magistrate court conviction, the district court has jurisdiction as well as a constitutional and statutory obligation to consider the defendant's pretrial double jeopardy claim. State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824, cert. denied, 134 N.M. 179, 74 P.3d 1071.

Greater sentence after trial de novo. — The greater sentence imposed by the district court for violation of certain municipal ordinances after a trial de novo did not deprive defendant of due process, nor did it amount to double jeopardy. City of Farmington v. Sandoval, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.

Double jeopardy was not violated by amendment of defendant's sentence. — Where the district court initially determined that defendant's 1972 uncounseled misdemeanor DWI conviction could not be used to enhance defendant's sentence for a 2009 aggravated DWI; the state asked the court to reconsider its ruling as a legal error six days after the court entered the sentence; the state did not present any new or supplemental evidence; the court determined that it had erred as a matter of law because defendant had not been sentenced to jail for the 1972 conviction; and the court amended defendant's sentence based on the legal error regarding the 1972 conviction, defendant did not have a reasonable expectation of finality in the original sentence because the state moved for reconsideration of the court's ruling on the validity of the 1972 sentence within the thirty days of the court's entry of the sentence and double jeopardy did not preclude the modification of defendant's sentence based on the legal error. State v. Redhouse, 2011-NMCA-118, 269 P.3d 8, cert. denied, 2011-NMCERT-011.

Larceny of cattle distinct from disposition of hides. — Larceny of cattle, completed on one day by driving the cattle away or killing them with intent to steal, was a distinct offense from that of killing cattle and failing to keep the hides and an acquittal of former was no bar to prosecution for latter. State v. Knight, 1929-NMSC-049, 34 N.M. 217, 279 P. 947.

Conspiracy and completed offense are separate offenses and conviction of both does not amount to double jeopardy. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.

The commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses, and a conviction for the conspiracy may be had though the substantive offense was completed. The plea of double jeopardy is not a defense to conviction for both offenses. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.

Evidence that a conspiracy to commit burglary was entered on the evening of November 16th, that the conspirators unsuccessfully attempted to carry out the conspiracy at 10:30 p.m. of that day, and that the burglary was performed between 9:00 and 9:30 a.m. of November 17th, showed two distinct crimes, and there was no factual basis for the contention that they were either the same or so similar that multiple convictions were prohibited. State v. Watkins, 1975-NMCA-126, 88 N.M. 561, 543 P.2d 1189, cert. denied, 89 N.M. 6, 546 P.2d 71.

Double use of prior felony. — It is not legally permissible for the state to present evidence of the same prior felony to prove an essential element of the crime of felon in possession of a firearm, and to rely upon this same evidence for purposes of enhancing the defendants' sentences under the habitual offender criminal statute. State v. Haddenham, 1990-NMCA-048, 110 N.M. 149, 793 P.2d 279, cert. denied, 110 N.M. 72, 792 P.2d 49, and 110 N.M. 183, 793 P.2d 865.

II. TESTS.

A. LESSER INCLUDED OFFENSE.

Effect of conviction or acquittal of lesser included offense. — Conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Meaning of included offense. — For an offense to be included within another offense, the offense must be necessarily included in the offense charged in the indictment, and for an offense to be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

Indictment source for determining lesser offense. — For a lesser offense to be necessarily included, the greater offense cannot be committed without also committing the lesser, and in determining whether an offense is necessarily included, the court will look to the offense charged in the indictment. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Exception to rule. — Conviction of a lesser included offense bars prosecution of a greater offense, subject to one exception: if the court does not have jurisdiction to try the crime, double jeopardy cannot attach, since double jeopardy requires that a court have sufficient jurisdiction to try the charge. Where the magistrate court had no jurisdiction to try the charge of vehicular homicide while driving while intoxicated or recklessly driving, double jeopardy should not bar the vehicular homicide by driving while intoxicated charge. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Armed robbery and aggravated battery. — The concept of lesser included offenses is not involved in a prosecution for armed robbery and aggravated battery because either offense can be committed without committing the other offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Aggravated burglary involving battery and aggravated battery involving deadly weapon. — Where defendant entered the victims' home with intent to commit theft and stabbed and beat the victims, defendant's convictions of aggravated burglary involving battery and aggravated burglary involving a deadly weapon did not violate double jeopardy. State v. Swick, 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, cert. granted, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.

Driving under the influence and homicide by vehicle. — Where the indictment against defendant was phrased in the alternative charging him with homicide by vehicle (former Section 64-22-1, 1953 Comp.) while violating either Section 64-22-2, 1953 Comp.(former driving under the influence) or Section 64-22-3, 1953 Comp. (former reckless driving), the prosecution was not barred by a conviction in municipal court for driving under the influence since the lesser offense of driving while under the influence of intoxicating liquor is not necessarily included in the greater offense of homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Possession and distribution. — Possession of marijuana was a lesser offense necessarily included in the greater offense of distribution, arising out of the same events, and since defendant was convicted of the lesser offense, double jeopardy barred his prosecution for the greater. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.

Criminal sexual contact of minor and attempted criminal sexual penetration. — The offenses of criminal sexual contact of a minor and attempted criminal sexual penetration of a minor cannot be characterized as lesser included and greater inclusive crimes because they each contain different elements and stand independently in relation to one another. State v. Mora, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237.

B. SAME EVIDENCE.

Nature of test. — The test for determining whether two offenses are the same so as to bring into operation the prohibition against double jeopardy is the "same evidence" test which asks whether the facts offered in support of one offense would sustain a conviction of the other. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813; Owens v. Abram, 1954-NMSC-096, 58 N.M. 682, 274 P.2d 630, cert. denied, 348 U.S. 917, 75 S. Ct. 300, 99 L. Ed. 719 (1955).

Same evidence test. — The "same evidence" test is whether the facts offered in support of one offense would sustain a conviction of the other offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Unitary test. — Where a defendant convicted of multiple offenses claims double jeopardy, a reviewing court first determines whether defendant's conduct was unitary in nature so that the same acts were used to prove both offenses; where the conduct is unitary, the court must then examine the statutes in question to determine whether the legislature intended that multiple punishments could be imposed for different criminal offenses resulting from the same conduct. State v. Duran, 1998-NMCA-153, 126 N.M. 60, 966 P.2d 768, cert. denied, 126 N.M. 533, 972 P.2d 352, overruled on other grounds, State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896, cert. denied, 128 N.M. 149, 990 P.2d 823.

Proof of different facts. — If either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486; Owens v. Abram, 1954-NMSC-096, 58 N.M. 682, 274 P.2d 630, cert. denied, 348 U.S. 917, 75 S. Ct. 300, 99 L. Ed. 719 (1955).

If test met, section does not bar consecutive sentencing. — Under the "same evidence" test, where different elements are required to be proved in order to sustain each of three convictions, and different evidence is admitted to prove the different elements, it appears that the three convictions are based in part on separate evidence and the prohibition against double jeopardy does not bar consecutive sentencing under the circumstances of the case. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Harassment and stalking. — Where the state relies on identical acts of an accused involving the same course of conduct to prove both the offenses of harassment and of stalking, double jeopardy provisions preclude multiple punishment, and the offense of harassment is subsumed into the offense of misdemeanor stalking. State v. Duran, 1998-NMCA-153, 126 N.M. 60, 966 P.2d 768, cert. denied, 126 N.M. 533, 972 P.2d 352, overruled on other grounds by State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896, cert. denied, 128 N.M. 149, 990 P.2d 823.

Felony murder and armed robbery are separate offenses, although they may arise out of the same transaction. State v. Martinez, 1981-NMSC-016, 95 N.M. 421, 622 P.2d 1041.

Armed robbery and aggravated battery. — Since taking the victim's purse was a fact required to be proved under the armed robbery charge, but not under the aggravated battery charge, and application of force was a fact required to be proved under the aggravated battery charge, while threatened use of force would be acceptable proof under the armed robbery charge, the elements of the two crimes were not the same, and the "same evidence" test did not apply. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Drunk driving and homicide by vehicle. — Where the facts offered in municipal court to support a conviction for driving while under the influence of intoxicating liquors would not necessarily sustain a conviction for homicide by vehicle in district court, under the "same evidence" test there was no double jeopardy when the state sought to prosecute the defendant for homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

C. MERGER, COLLATERAL ESTOPPEL AND SAME TRANSACTION.

Definition of merger. — Merger is the name applied to the concept of multiple punishment when multiple charges are brought in a single trial; it is an aspect of double jeopardy, concerned with whether more than one offense has occurred and is applied to prevent a person from being punished twice for the same offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Nature of test. — The test of whether one criminal offense has merged in another is not whether two criminal acts are successive steps in the same transaction (the rejected "same transaction" test), but whether one offense necessarily involves the other. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Factors considered. — In determining whether the defendant's acts constituted a single offense or multiple offenses for purposes of double jeopardy, factors considered include the time between the acts, the location of the victim at the time of each act, the existence of any intervening event, distinctions in the manner of committing the acts, the defendant's intent, and the number of victims. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Merger concept has aspects of "same evidence" test because merger and the "same evidence" test are both concerned with whether more than one offense has been committed. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Merger has aspects of included offense concept. — The merger concept has aspects of the included offense concept, and in determining whether one offense necessarily involves another offense so that merger applies, the decisions have looked to the definitions of the crimes to see whether the elements are the same; this approach is similar to the approach used in determining whether an offense is an included offense (a determination of whether the greater offense can be committed without also committing the lesser). State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Offense of aggravated battery did not merge with armed robbery. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Homicide. — Homicide resulting from great bodily harm was sufficient evidence for the jury to find aggravated sodomy and first degree kidnapping, and there was no merger with the murder charge on which defendant was acquitted. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461.

Assault. — An assault arising from a series of three successive shots fired at a single victim, not separated by a significant amount of time, and arising from a single, continuous intent constituted one offense, and conviction of the defendant on two counts of assault violated his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Definition of collateral estoppel. — Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657.

Under the rule of collateral estoppel any right, fact or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose or subject matter of the two suits is the same or not. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657.

Part of constitutional guarantee. — The principle of collateral estoppel is embodied in the U.S. Const., amend. V guaranty against double jeopardy and is fully applicable to states by force of U.S. Const., amend. XIV. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657.

When constitutionally required. — The principle of collateral estoppel is only constitutionally required after a previous acquittal on issues raised in a second prosecution, and bars relitigation between the same parties of issues actually determined at the previous trial. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Double use of conditional discharge. — Use of the defendant's prior conditional discharge to prove that he was a felon in order to convict him of the crime of felon in possession of a firearm and to enhance his sentence for underlying assault convictions did not violate his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Sanity during commission of different crimes. — Where defendant's sanity was raised as an affirmative defense in a first trial, was actually litigated and was absolutely necessary to a decision in that trial, the sanity of the defendant in a second trial for offenses committed some 16 hours prior to the crime which was the subject of the first trial was the same issue of fact as the question of his insanity at the first trial and having been decided there in his favor collateral estoppel was a bar to the second trial. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657.

Traffic violations and homicide by vehicle. — Where defendant was convicted in municipal court of violation of certain traffic ordinances, he had no acquittal to raise in his defense in district court on charges of homicide by vehicle, and application of the principle of collateral estoppel was therefore inappropriate. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Same transaction test rejected. — The "same transaction" test, which is concerned with whether offenses were committed at the same time, were part of a continuous criminal act and inspired by the same criminal intent, has not been imposed by the United States supreme court on the states in double jeopardy cases, and its use is not mandated by N.M. Const., art. II, § 15. It is rejected and disapproved. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

III. MISTRIAL.

Manifest necessity. — Where a mistrial is granted not at the behest of defendant, a second trial is precluded by the double jeopardy clause of the U.S. Const., amend. V unless it can be said that there was a "manifest necessity" or " compelling reason" for the granting of a mistrial. Upon appellate review, the question to be decided is whether the trial court exercised sound judicial discretion to ascertain that there was a manifest necessity for the declaration of the mistrial. State v. Sedillo, 1975-NMCA-089, 88 N.M. 240, 539 P.2d 630.

Basis of manifest necessity. — The court of appeals would decline to hold there was a manifest necessity for a mistrial based on the state's supposedly prejudiced right to appeal when no appeal was attempted. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Ends of public justice. — In determining whether a mistrial should be declared, the trial court must consider whether the ends of public justice would be defeated by carrying the first trial to a final verdict; this consideration for the ends of public justice is a concept separate from manifest necessity. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Prejudice to state. — The failure of defendant to file a timely motion to suppress his statement resulted in prejudice to the state, and since in such circumstances it would be contrary to the ends of public justice to carry the first trial to a final verdict, the trial court did not abuse its discretion in declaring a mistrial; there was no double jeopardy. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Need for responsible professional conduct. — In considering whether a mistrial was proper unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Further interests of defendant. — In determining whether a defendant's retrial will place him in double jeopardy after a prior trial has ended with a declaration of a mistrial not at defendant's request include defendant's interest in having his fate determined by the jury first impaneled, which encompasses not only his right to have his trial completed by a particular panel, but also his interest in ending the dispute then and there with an acquittal, which factor would weigh heavily against retrial in all situations where jeopardy has attached, and also the factor of avoiding giving the state a second bite of the apple in order to either strengthen its case or to alter its trial strategy to obtain a conviction. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Discretion of trial court. — The law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated; they are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances, which would render it proper to interfere, but the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Upon appellate review of the declaration of a mistrial the question is whether the trial court exercised a sound discretion to ascertain that there was a manifest necessity for a mistrial. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Mistrial on abuse of discretion. — Where, after the second day of a trial, when jury instructions had already been settled, one of the jurors was frightened by a telephone call unrelated to the trial, and exploring her possible bias for use on voir dire in a future case, and the record did not show that the juror's fear involved either the state or the defendant, the trial court failed to exercise that sound discretion required of him in determining whether a manifest necessity or proper judicial administration mandated a mistrial. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Duty of court before declaring mistrial. — Where there is no manifest necessity for declaring a mistrial, the trial court has some duty to inquire as to possible alternatives thereto; affecting the scope of inquiry required are the factors of magnitude of prejudice and the point at which the proceedings are terminated, and as the magnitude of possible prejudice increases, less effort need be expended in seeking alternative resolutions, while conversely, as the length of trial wears on, more effort should be expended. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Failure to oppose mistrial. — Defense counsel's silence after declaration of a mistrial by the trial court, sua sponte, where simultaneously the defense attorney himself had been held in contempt for implicitly challenging a police officer on recross-examination to take a polygraph test, could not, under the circumstances, be construed as an intentional relinquishment of a known right, the right against double jeopardy, or as the mere play of wits of the sharp practitioner. State v. Sedillo, 1975-NMCA-089, 88 N.M. 240, 539 P.2d 630.

Retrial after mistrial. — Two considerations must be balanced against the weighty interests of the defendant against retrial after declaration of a mistrial not at his request, namely, whether there was a manifest necessity for the discharge of the first jury, and also whether the ends of public justice would have been defeated by carrying the first trial to final verdict. When the irregularity occurring at trial is of a procedural nature, not rising to the level of jurisdictional error, the necessity to discharge the jury has been held to be not manifest, but where the irregularity involves possible partiality within the jury, it has been more often held that the public interest in fair verdicts outweighs defendant's interest in obtaining a verdict by his first choice of jury. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71. A retrial after a mistrial is not barred by double jeopardy unless the mistrial was caused by prosecutorial overreaching. State v. Mazurek, 1975-NMCA-066, 88 N.M. 56, 537 P.2d 51.

Retrial prohibited for prosecutorial misconduct. — Retrial is barred when improper official conduct is so unfairly prejudicial that it cannot be cured by means short of a mistrial or a motion for a new trial, and the official knows that the conduct is improper and prejudicial and the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal. State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792.

Prosecutorial misconduct not bar to retrial. — Double jeopardy did not bar reprosecution where a mistrial was declared on motion of defendants for the prosecutor's discovery abuses because the defendants failed to show why any prejudice resulting from the prosecutor's late disclosure could not have been cured by a remedy short of a mistrial. State v. Lucero, 1999-NMCA-102, 127 N.M. 672, 986 P.2d 468, cert. denied, 128 N.M. 149, 990 P.2d 823.

To bar a retrial on double jeopardy grounds, the misconduct must be extraordinary. — Where defendant was charged with multiple crimes following a two-vehicle collision, including homicide by vehicle, great bodily harm by vehicle, driving under the influence of intoxicating liquor or drugs, and reckless driving, and where, prior to trial, the district court judge specifically excluded by motion in limine hearsay testimony that defendant had confessed to another officer about being behind the wheel at the time of the accident, and where, at trial, the officer failed to adhere to the court's admonishment, double jeopardy did not bar a retrial where it was the state's witness, not the prosecutor, that injected the precluded testimony into the trial, and where there was no evidence that the prosecutor intentionally elicited testimony about the purported confession that had been suppressed. State v. Hernandez, 2017-NMCA-020, cert. denied.

Mistrial on one of two separate charges. — Since the defendant was charged with attempted murder and aggravated battery and was convicted of aggravated battery, and since the two offenses were in separate counts and the jury was not instructed that it could convict on only one offense, its inability to return a verdict on the attempted murder charge was not an implicit acquittal and the state was not barred from pursuing an attempted murder charge on remand. State v. Martinez, 1995-NMSC-064, 120 N.M. 677, 905 P.2d 715.

Reprosecution after unnecessary mistrial. — Defense counsel's implicit challenge to a police officer to take a polygraph test, absent repeated misconduct, was not a type of misconduct that would go to the very vitals of the trial itself, and hence, where the trial judge sua sponte declared a mistrial, having made no effort to cure the error or to assure that there was manifest necessity for such a step, reprosecution of the defendant would violate his right under the U.S. Const., amend. V not to be put in jeopardy twice for the same offense. State v. Sedillo, 1975-NMCA-089, 88 N.M. 240, 539 P.2d 630.

IV. RAISING THE DEFENSE.

Estoppel. — An accused is estopped at a second trial to plead the bar of a prior conviction, judgment and sentence of which have been reversed on appeal. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768.

Factual basis must appear in record in order to support a double jeopardy defense. State v. Wood, 1994-NMCA-060, 117 N.M. 682, 875 P.2d 1113, cert. denied, 117 N.M. 744, 877 P.2d 44.

Defendants could raise their state-based double jeopardy claim for the first time on appeal, provided the factual basis for the state constitutional argument could be found in the record of proceedings below. State v. Lucero, 1999-NMCA-102, 127 N.M. 672, 986 P.2d 468, cert. denied, 128 N.M. 149, 990 P.2d 823.

Raising issue on appeal despite failure to object below. — Even though defendant made no objection at second trial (held after remand of initial trial which had resulted in verdict of first degree murder with recommendation of clemency) to instruction that the jury could find defendant guilty of murder in the first degree and might or might not recommend clemency, the question of whether this constituted double jeopardy could nevertheless be raised on appeal. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768.

Defendant's argument that the state split one criminal defense into five separate prosecutions and that his convictions were not authorized by the legislature under the statute prohibiting the unauthorized practice of law amounted to a defense of double jeopardy which the defendant could raise for the first time on appeal. State v. Edwards, 1984-NMCA-070, 102 N.M. 413, 696 P.2d 1006, cert. quashed, 102 N.M. 412, 696 P.2d 1005 (1985).

The defense of double jeopardy may be raised on appeal even though the defendant failed to argue that issue in the court below. State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656; State v. Jensen, 1998-NMCA-034, 124 N.M. 726, 955 P.2d 195.

Defendant may raise a double jeopardy challenge on appeal regardless of preservation. State v. Rodriguez, 2004-NMCA-125, 136 N.M. 494, 100 P.3d 200, cert. granted, 2004-NMCERT-010, 136 N.M. 542, 101 P.3d 808, rev'd, 2006-NMSC-018, 139 N.M. 450, 134 P.3d 737.

Guilty plea not bar to raising issue on appeal. — The defendant was not barred by pleading guilty to two counts in a three count indictment, which contained identical language for all three counts including the name of the victim, from raising the double jeopardy claim on appeal. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Law of case doctrine not bar. — When a trial court's decision that double jeopardy barred reprosecution of defendant was reversed by the court of appeals, the law of the case doctrine did not bar consideration of the double jeopardy issue on appeal of the defendant's conviction at the second trial. State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792.

Waiver of defense. — Plea of former jeopardy must be interposed at the earliest opportunity, otherwise it is waived; it cannot be raised for first time after verdict. State v. Mares, 1921-NMSC-048, 27 N.M. 212, 199 P. 111 (decided under prior law).

Law reviews. — For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).

For note, "Criminal Procedure Civil Forfeiture and Double Jeopardy: State v. Nunez," see 31 N.M.L. Rev. 401 (2001).

For student article, "Criminal Law: Applying the General/Specific Statute Rule in New Mexico State v. Santillanes," see 32 N.M.L. Rev. 313 (2002).

For note and comment, "Adding Charges on Retrial: Double Jeopardy, Interstitialism and State v. Lynch," see 34 N.M.L. Rev. 539 (2004).

For note and comment, "complying With Nunez: The Necessary Procedure for Obtaining Forfeiture of Property and Avoiding Double Jeopardy After State v. Esparza," see 34 N.M.L. Rev. 516 (2004).

For article, "Developing a State Constitutional Law Strategy in New Mexico Criminal Prosecutions," see 39 N.M.L. Rev. 407 (2009).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 243 to 320.

Occurrences during a view as warranting the jury's discharge without letting in plea of former jeopardy upon subsequent trial, 4 A.L.R. 1266.

Statutes relating to sexual psychopaths, 24 A.L.R.2d 350.

Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation, 29 A.L.R.2d 1074.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Discharge of accused for holding him excessive time without trial as bar to subsequent prosecution for same offense, 50 A.L.R.2d 943.

Conspiracy: conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Lesser offense: conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

Appeal: conviction from which appeal is pending as bar to another prosecution for same offense under rule against double jeopardy, 61 A.L.R.2d 1224.

Plea of guilty as basis of claim of double jeopardy in attempted subsequent prosecution for same offense, 75 A.L.R.2d 683.

Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.

Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense, 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy, 6 A.L.R.3d 905.

Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide, 11 A.L.R.3d 834.

Increased punishment: propriety of increased punishment on new trial for same offense, 12 A.L.R.3d 978.

Larceny: single or separate larceny predicated upon stealing property from different owners at the same time, 37 A.L.R.3d 1407.

Double jeopardy as bar to retrial after grant of defendant's motion for mistrial, 98 A.L.R.3d 997.

Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation, 99 A.L.R.3d 781.

Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts, 6 A.L.R.4th 802.

Retrial on greater offense following reversal of plea-based conviction of lesser offense, 14 A.L.R.4th 970.

What constitutes "manifest necessity" for state prosecutor's dismissal of action, allowing subsequent trial despite jeopardy's having attached, 14 A.L.R.4th 1014.

Presence of alternate juror in jury room as ground for reversal of state criminal conviction, 15 A.L.R.4th 1127.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

Double jeopardy considerations in federal criminal cases - supreme court cases, 162 A.L.R. Fed. 415.

22 C.J.S. Criminal Law §§ 208 to 276.