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The Habeas Citebook Ineffective Counsel

Nebraska Supreme Court: Multiple Theft Charges for Stealing Items Belonging to Several People at Same Time and Place Violates Double Jeopardy

In a case of first impression, the Nebraska Supreme Court held on March 13, 2020, that theft from multiple owners “at the same and in the same place … constitutes a single offense,” and thus multiple theft charges violates the Double Jeopardy Clause of both the Nebraska and U.S. Constitutions.

Jonathan Sierra took part in the theft of several tools belonging to three different people from an auto shop in York, Nebraska, in 2017. He was charged with three counts of theft, among other charges, for the theft. He took his case to trial, was found guilty of those three counts, and sentenced to 16 to 20 years in prison.

On appeal to the Nebraska Supreme Court, Sierra argued that by charging him with multiple counts of theft, even though the tools taken were owned by different individuals, his convictions violate the Double Jeopardy Clause of the Nebraska and U.S. Constitutions because the theft constitutes a single offense.

The Court began by explaining that the Double Jeopardy Clause under both constitutions is designed to protect against three distinct abuses: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.”

While the Nebraska Supreme Court had held that multiple items stolen at the same time from the same place is a single offense, it had never addressed the question of whether separate charges may be filed if those items belong to different people.

The Court looked to Neb. Rev. Stat. § 28-518, which provides that the value of all the items stolen may be considered together to determine the grade of the offense under law. Importantly, the statute forbids the value of the items to be aggregated into more than one offense. The Court concluded that this supports the idea that multiple thefts in the same criminal conduct amounts to just one offense.

“This principle of considering theft of multiple items as one offense has been applied by a majority or jurisdictions, even when the property taken has more than one owner,” the Court reasoned, collecting decisions from other state courts. “We accordingly find that charging and convicting Sierra with three separate offenses for theft ... violated the Double Jeopardy Clauses of the Nebraska and U.S. Constitutions and constituted plain error.”

The Court reviewed for “plain error” because Sierra’s lawyer never objected to the error in the trial court. Instead, the error was raised on appeal by new counsel for the first time. For an error to be “plain,” there must (1) be an error, (2) that is plainly evident from the record but not objected to at trial, (3) that affects the substantial rights of the litigant, and (4) that if left uncorrected would cause a miscarriage of justice or damage the integrity, reputation, and fairness of the judicial process. Mays v. Midnite Dreams, 915 N.W.2d 71 (Neb. 2018).

“Left uncorrected, this error would be a violation of Sierra’s fundamental rights and damage the integrity of the judicial process,” the Court said in finding plain error.

Related legal case

State v. Sierra

 

 

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