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State v. Bernert9/16/2004
s of Criminal Procedure, and finding that Defendant's misdemeanor plea was knowing and voluntary, the trial judge asked Defendant, "How do you plead?" Defendant pleaded guilty, and the court, apparently making inquiries about sentencing, then asked the State for a breath or blood test. When the State responded that it did not have either test, the judge then asked the State for a recommendation. It was only at that point that both the State and the judge made reference to previously available information regarding Defendant's criminal history--information contained in the Pretrial Service Program Own Recognizance Interview Sheet. The State, upon closer review of Defendant's record, realized that Defendant should have been charged with a felony because of his extensive criminal record. The State then moved the court not to accept Defendant's guilty plea.
**11 In a subsequent hearing to address the issue of whether the trial judge had accepted Defendant's plea to the misdemeanor, the judge who took the plea said that he subjectively believed that he had not accepted the plea, yet at the same time he acknowledged that maybe he ought to reconsider the manner in which he accepts pleas because he does not normally explicitly state when he has accepted a plea. Instead, as Defendant pointed out, the judge normally asks for a blood or breath test and any recommendations after taking the plea and in preparation for imposing sentence.
**12 Because we conclude that the trial court accepted Defendant's guilty plea to the misdemeanor DUI, we hold that jeopardy attached. Therefore, the trial court erred by denying Defendant's motion to dismiss the felony DUI conviction on double jeopardy grounds.
CONCLUSION
**13 The trial court erred by denying Defendant's motion to dismiss on double jeopardy grounds. Therefore, we reverse and remand for sentencing on the misdemeanor plea.
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