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Whittlesey v. State5/13/1992
ated. Stated differently, the State was under no obligation to try Whittlesey for robbery when it chose to do so -- it could have brought the prosecution or delayed bringing it, in its discretion, based solely on its assessment of the evidence. Once, however, it chose to prosecute the robbery charge, the State could not close its eyes to the effect of that prosecution on a subsequent prosecution for felony murder, when conviction of that charge required proof of the same elements. Whether, for purposes of the Diaz exception, the felony murder prosecution should have been brought at the same time as the robbery prosecution depends upon the crime being either known or discoverable at that time.
Reliance on Lovasco, therefore, is unavailing; that case is inapposite. In Lovasco, the Court was not concerned with successive prosecutions; it was concerned simply with the
timing of an initial prosecution. Here, there has been no delay, in the usual sense, of a prosecution. There is, rather, an attempt to maintain a successive prosecution: a lesser included offense of the greater charge has already been tried and the greater charge, not having been brought at the same time, is sought to be tried now. The issue, therefore, is whether the Double Jeopardy Clause bars this subsequent prosecution. Lovasco certainly applies when we are concerned with an initial prosecution. As indicated, we are not. To read Lovasco as the majority does is to eliminate entirely the Double Jeopardy Clause's bar against successive prosecutions.
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