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Kee v. Lubeck5/30/2003
s, 427 U.S. 618, 96 S. Ct. 2781 (1976); Colton v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953 (1972). Noting that a defendant in a two-tier system is in no danger of prosecution after an acquittal, the Court states that " he decision to secure a new trial rests with the accused alone," who "is in no different position than a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand for a new trial." Ludwig, 427 U.S. at 631; 96 S. Ct. at 2788. The Court continued:
The only difference between an appeal on the record and an appeal resulting automatically in a new trial is that a convicted defendant . . . may obtain a "Reversal" and a new trial without assignment of error in the proceedings at his first trial. Nothing in the Double Jeopardy Clause prohibits a state from affording a defendant two opportunities to avoid conviction and secure an acquittal. Id. at 632; 96 S. Ct. at 2788-89.
In Colton, the Supreme Court rejected a claim that the possibility of a harsher penalty following a trial de novo violated double jeopardy, reasoning that the defendant had the option "to seek a new trial with the slate wiped clear, or to accept the penalty imposed by the inferior court." Colton, 407 U.S. at 119; 92 S. Ct. at 1961. In Lydon, the Supreme Court adopted the characterization of the second-tier proceeding as "part of a single, continuous course of judicial proceedings during which . . . a defendant receives more - rather than less - of the process normally extended to criminal defendants." Lydon, 466 U.S. at 310; 104 S. Ct. at 1814. Therefore, the second-tier trial did not violate double jeopardy guarantees by providing a defendant with "two opportunities to avoid conviction and secure an acquittal." Id. at 312; 104 S. Ct. at 1815.
Kee has not demonstrated that Utah's two-tier system violates the Double Jeopardy Clause and, specifically, has not demonstrated that the justice court's judgment must be vacated pending appeal. A defendant appealing a justice court conviction has an absolute right to a trial de novo. See Wisden v. District Court 694 P.2d 605, 606 (Utah 1984). Kee has not demonstrated that he is entitled to dismissal of the charges.
Kee next argues that rule 4-608's requirement to obtain a certificate of probable cause violates due process by establishing a prerequisite to exercising the right to appeal. A defendant appealing a justice court judgment is entitled to a trial de novo without any demonstration of error in the justice court. See Hinson, 966 P.2d at 275-76. In this context, we agree it appears unnecessary to require a defendant to demonstrate that the "appeal . . . raises substantial issues of law or fact reasonably likely to result in a reversal, an order for a new trial or a sentence that does not include a term of incarceration in jail or prison." Utah R. Crim. P. 27 (f)(2). However, Respondent correctly notes that the burden is the same one imposed in a traditional appeal and that the determination of whether to grant or deny a certificate of probable cause has no impact on the outcome of the trial de novo. Although the requirement places a procedural burden on a defendant, we conclude it does not limit the right to appeal through a trial de novo.
The claim that a defendant whose case originates in justice court is denied equal protection under the law is without merit. Given the foregoing analysis of two-tier systems, allowing the defendant two opportunities for acquittal does not constitute less favorable treatment.
Accordingly, we conclude that the Respondent did not abuse his discretion in denying the motion to dismiss. In the absence of a demonstration tha
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