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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CORDELL TRITT, | ) |
| ) Court of Appeals No. A-9600 | |
| Petitioner, | ) Trial Court No. 4FA-05-3114 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) No. 2047 April 28, 2006 |
| ) | |
Petition for Review from the Superior Court,
Fourth Judicial District, Fairbanks, Mark I.
Wood, Judge.
Appearances: Geoffry B. Wildridge and Marcia
E. Holland, Assistant Public Defenders,
Fairbanks, and Quinlan Steiner, Public
Defender, Anchorage, for the Petitioner.
Elizabeth F. Crail, Assistant District
Attorney, and Jeffrey A. OBryant, District
Attorney, Fairbanks, and David W. M rquez,
Attorney General, Juneau, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Cordell Tritt stands charged with felony driving under
the influence. Tritt was brought to trial on this charge in
December 2005, but that trial ended when the superior court
declared a mistrial without Tritts consent. Facing a second
trial, Tritt filed a motion asking the superior court to dismiss
the charge against him on double jeopardy grounds. The superior
court ruled that there had been manifest necessity for the
mistrial, and the court accordingly ruled that the double
jeopardy clause did not bar a second trial. Tritt now petitions
this Court to review (and reverse) the superior courts ruling.
The ultimate question is whether there was manifest
necessity for the mistrial. But the immediate question is
whether this Court should grant Tritts petition and order full
briefing of the merits of the mistrial issue.
The State argues that we should deny Tritts petition
for review because Tritt has shown no reason to deviate from the
normal rule that an appellate court will not consider challenges
to a trial courts rulings until after the trial court has issued
a final judgement. The State writes:
Tritt has not identified any circumstances
that would make [his case] any different from
[the] ordinary [case]. ... Tritt appears to
simply assume that rulings by trial judges in
criminal cases should be reviewed as they are
made, rather than after a final judgment has
[been] entered. Because this assumption is
incorrect, [Tritts petition] ... should be
denied.
The States argument is incorrect.
This Court is, in fact, legally obliged to
grant Tritts petition and to order briefing
on the merits. However, the State had little
way of knowing this which is why we are
taking the unusual step of issuing a
published opinion explaining our decision to
grant this petition for review.
A few months ago, in Artemie v.
State, File No. A-9286, this Court received a
similar petition for review. The petitioner
in Artemie had gone to trial; that trial had
ended in a mistrial without his consent; and
the superior court had ordered him to stand
trial a second time, despite his contention
that a second trial was barred by the double
jeopardy clause. Artemie then petitioned
this Court to review the superior courts
ruling.
This Court, by a two-to-one vote,
denied Artemies petition essentially ruling
that Artemie was obliged to wait until after
the superior court issued its final judgement
before Artemie could obtain appellate review
of the superior courts double jeopardy
decision. The dissenting opinion argued that
it was improper for an appellate court to
deny interlocutory review of a double
jeopardy claim since, if the defendant was
right, the defendant would suffer
constitutional harm just by being forced to
undergo a second trial, regardless of how
that trial ended. See Artemie v. State, File
No. A-9286, Order dated July 11, 2005.
After this Court denied Artemies
petition for review, Artemie filed a petition
for hearing in the supreme court. The
supreme court granted hearing and issued an
order directing this Court to grant Artemies
petition for review. See Artemie v. State,
File No. S-12026, Order dated December 15,
2005. Here is the text of that order (with
the sole footnote incorporated as bracketed
text):
Petitioner seeks reversal of the court
of appealss ... order denying his petition
for review on his claim of double jeopardy.
Upon consideration of his petition for
hearing and the states response,
IT IS ORDERED:
The petition for hearing is GRANTED.
The court of appealss order ... denying the
petition for review is VACATED. We conclude
that in all but patently unmeritorious cases,
the court of appeals should grant and decide
petitions seeking review of a denial of a
defendants pretrial motion to dismiss on
double jeopardy grounds. [See MacPherson v.
State, 533 P.2d 1103, 1104 & n. 3 (Alaska
1975); Peel v. State, 751 P.2d 1366, 1368
(Alaska App. 1988).] [This] case is
therefore REMANDED to the court of appeals
with directions to grant the petition for
review and decide the merits of the double
jeopardy issue.
The supreme courts order in Artemie
settles the issue of whether a petition for
review such as Tritts should be granted. As
the supreme court declared in that order,
when a trial court has denied a defendants
motion to dismiss criminal charges on double
jeopardy grounds, and the defendant files a
petition seeking review of the trial courts
decision, this Court should grant the
petition i.e., agree to decide the merits of
the defendants underlying double jeopardy
claim, even though no final judgement has
been entered unless the defendants double
jeopardy claim patently has no merit.
However, the supreme court
neglected to publish its order in Artemie.
Thus, many attorneys and trial court judges
may be unaware of the rule that governs our
consideration of this type of petition for
review. For this reason, we have decided to
issue a published opinion explaining our
decision to grant review in this case.
The petition for review is GRANTED.
(We have issued a separate order
specifying the procedures for preparing the
transcript and record on appeal, and for the
briefing and argument of this case.)
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