State v. May6/3/2005
ense reduced to a misdemeanor." As noted above, we agree that only inadmissible hearsay evidence supported the age-of-the-passenger element. But we disagree with May's implicit suggestion that the state may not retry him on the felony charge of aggravated DUI under § 28-1383(A)(3).
Although May neither argues nor cites the Double Jeopardy Clause in support of his argument, that clause "'forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.'" State v. Moody, 208 Ariz. 424, 25, 94 P.3d 1119, 1133 (2004), quoting Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed. 2d 1, 9 (1978). Thus, "where a conviction has been reversed because of insufficient evidence, the defendant cannot be retried." Korzep v. Superior Court, 172 Ariz. 534, 541, 838 P.2d 1295, 1302 (App. 1991). But " hen a case is reversed for trial error, the state is not foreclosed from a retrial or from presenting evidence at a new trial in response to that error." Id.; see also Moody, 208 Ariz. 424, 26, 94 P.3d at 1134 (Double Jeopardy Clause does not preclude retrial of defendant who successfully obtains reversal of conviction on appeal on grounds other than insufficient evidence); State v. Sanders, 205 Ariz. 208, 63, 68 P.3d 434, 448 (App. 2003) (same). In other words, " defendant who succeeds in overturning his conviction may be retried because the reversal on appeal nullifies the original conviction and wipes the slate clean." State v. Rumsey, 136 Ariz. 166, 169, 665 P.2d 48, 51 (1983); see also Moody, 208 Ariz. 424, 26, 94 P.3d at 1134 (same).
Here, our reversal of May's conviction is not based on insufficient evidence to support the jury's finding of guilt. Rather, the reversal is solely based on trial error-erroneous introduction of inadmissible hearsay evidence. Under these circumstances, a retrial on the original charge is not precluded. See Lockhart v. Nelson, 488 U.S. 33, 40-41, 109 S.Ct. 285, 290-92, 102 L.Ed. 2d 265, 273-74 (1988) (" he Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction."); Burks, 437 U.S. at 15, 98 S.Ct. at 2149, 57 L.Ed. 2d at 12 (retrial permitted when reversal on appeal based on "incorrect receipt or rejection of evidence" rather than evidentiary insufficiency); People v. Olivera, 647 N.E.2d 926, 931 (Ill. 1995) (" etrial is permitted even though evidence is insufficient to sustain a verdict once erroneously admitted evidence has been discounted, and for purposes of double jeopardy all evidence submitted at the original trial may be considered when determining the sufficiency of the evidence."). Accordingly, we decline May's invitation to vacate his conviction based on evidentiary insufficiency or to preclude retrial on remand. See Lockhart, 488 U.S. at 41, 109 S.Ct. at 291, 102 L.Ed. 2d at 274 ("a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause").
DISPOSITION
May's conviction is reversed, and the case is remanded for further proceedings.
JOHN PELANDER, Chief Judge
CONCURRING:
M. JAN FLÓREZ, Presiding Judge
PHILIP G. ESPINOSA, Judge
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