MR. JUSTICE POWELL delivered the opinion of the Court.
The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent.
I
On November 29, 1973, the petitioner, Nathaniel Brown, stole a 1965 Chevrolet from a parking lot in East Cleveland, Ohio. Nine days later, on December 8, 1973, Brown was caught driving the car in Wickliffe, Ohio. The Wickliffe police charged him with "joyriding"—taking or operating the car without the owner's consent—in violation of Ohio Rev. Code Ann. § 4549.04 (D) (1973, App. 342).
Upon his release from jail on January 8, 1974, Brown was returned to East Cleveland to face further charges, and on February 5 he was indicted by the Cuyahoga County grand jury. The indictment was in two counts, the first charging
Brown objected to both counts of the indictment on the basis of former jeopardy.
On March 18, 1974, at a pretrial hearing in the Cuyahoga County Court of Common Pleas, Brown pleaded guilty to the auto theft charge on the understanding that the court would consider his claim of former jeopardy on a motion to withdraw the plea.
The Ohio Court of Appeals affirmed. It held that under Ohio law the misdemeanor of joyriding was included in the felony of auto theft:
Although this analysis led the court to agree with Brown that "for purposes of double jeopardy the two prosecutions involve the same statutory offense," id., at 23,
The Ohio Supreme Court denied leave to appeal.
We granted certiorari to consider Brown's double jeopardy claim, 429 U.S. 893 (1976), and we now reverse.
II
The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." It has long been understood that separate statutory crimes need not be identical—either in constituent elements or in actual proof—in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law § 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L. J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the "same offense" under the Double Jeopardy Clause.
The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U.S. 386 (1958); Bell v. United States, 349 U.S. 81 (1955); Ex parte Lange, 18 Wall. 163 (1874). Where successive prosecutions are at stake, the guarantee serves "a constitutional policy of finality for the defendant's benefit." United States v. Jorn, 400 U.S. 470, 479 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436
The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 (1932):
This test emphasizes the elements of the two crimes. "If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . ." Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975).
If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-188 (1889); cf. Gavieres v. United States, 220 U.S. 338 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless "each statute requires proof of an additional fact which the other does not," Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.
Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute "the same statutory offense" within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that "each [statute] requires proof of a fact which the other does not." 284 U. S., at 304. As is invariably true of a greater and lesser included offense, the lesser offense—joyriding—requires no proof beyond that which is required for conviction of the greater—auto theft. The greater offense is therefore by definition the "same" for purposes of double jeopardy as any lesser offense included in it.
This conclusion merely restates what has been this Court's understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that
Although in this formulation the conviction of the greater precedes the conviction of the lesser, the opinion makes it clear that the sequence is immaterial. Thus, the Court treated the formulation as just one application of the rule that two offenses are the same unless each requires proof that the other does not. Id., at 188, 190, citing Morey v. Commonwealth, supra, at 434. And as another application of the same rule, the Court cited, 131 U. S., at 190, with approval the decision of State v. Cooper, 13 N. J. L. 361 (1833), where the New Jersey Supreme Court held that a conviction for arson barred a subsequent felony-murder indictment based on the death of a man killed in the fire. Cf. Waller v. Florida, 397 U.S. 387,
III
After correctly holding that joyriding and auto theft are the same offense under the Double Jeopardy Clause, the Ohio Court of Appeals nevertheless concluded that Nathaniel Brown could be convicted of both crimes because the charges against him focused on different parts of his 9-day joyride. App. 23. We hold a different view. The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. Cf. Braverman v. United States, 317 U.S. 49, 52 (1942). The applicable Ohio statutes, as written and as construed in this case, make the theft and operation of a single car a single offense. Although the Wickliffe and East Cleveland authorities may have had different perspectives on Brown's offense, it was still only one offense under Ohio law.
Reversed.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring.
I join the Court's opinion, but in any event would reverse on the ground, not addressed by the Court, that the State did not prosecute petitioner in a single proceeding. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of "all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Ashe v. Swenson, 397 U.S. 436, 453-454, and n. 7 (1970) (BRENNAN, J., concurring). See Thompson v. Oklahoma, 429 U.S. 1053 (1977) (BRENNAN, J., dissenting from denial of certiorari), and cases collected therein. In my view the Court's suggestion, ante, at 169 n. 8, that the Ohio Legislature might be free to make joyriding a separate and distinct offense for each day a motor vehicle is operated without the owner's consent would not affect the applicability of the single-transaction test. Though under some circumstances a legislature may divide a continuing course of conduct into discrete offenses, I would nevertheless hold that all charges growing out of conduct constituting a "single criminal act, occurrence, episode, or transaction" must be tried in a single proceeding.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
The Court reverses the judgment of the Ohio Court of Appeals because the Court does not wish this case to slip by
I, of course, have no quarrel with the Court's general double jeopardy analysis. See Jeffers v. United States, ante, p. 137. I am unable to ignore as easily as the Court does, however, the specific finding of the Ohio Court of Appeals that the two prosecutions at issue here were based on petitioner's separate and distinct acts committed, respectively, on November 29 and on December 8, 1973.
Petitioner was convicted of operating a motor vehicle on December 8 without the owner's consent. He subsequently was convicted of taking and operating the same motor vehicle on November 29 without the owner's consent and with the intent permanently to deprive the owner of possession. It is possible, of course, that at some point the two acts would be so closely connected in time that the Double Jeopardy Clause would require treating them as one offense. This surely would be so with respect to the theft and any simultaneous unlawful operation. Furthermore, as a matter of statutory construction, the allowable unit of prosecution may be a course of conduct rather than the separate segments of such a course. See. e. g., United States v. Universal C. I. T. Credit Corp., 344 U.S. 218 (1952). I feel that neither of these approaches justifies the Court's result in the present case.
Nine days elapsed between the two incidents that are the basis of petitioner's convictions. During that time the automobile moved from East Cleveland to Wickliffe. It strains credulity to believe that petitioner was operating the vehicle every minute of those nine days. A time must have come when he stopped driving the car. When he operated it again nine days later in a different community, the Ohio courts could properly find, consistently with the Double Jeopardy Clause, that the acts were sufficiently distinct to justify a
This Court, I fear, gives undeserved emphasis, ante, at 163-164, to the Ohio Court of Appeals' passing observation that the Ohio misdemeanor of joyriding is an element of the Ohio felony of auto theft. That observation was merely a preliminary statement, indicating that the theft and any simultaneous unlawful operation were one and the same. But the Ohio Court of Appeals then went on flatly to hold that such simultaneity was not present here. Thus, it seems to me, the Ohio courts did precisely what this Court, ante, at 169 n. 8, professes to say they did not do.
In my view, we should not so willingly circumvent an authoritative Ohio holding as to Ohio law. I would affirm the judgment of the Court of Appeals.
FootNotes
In both cases, strict application of the Blockburger test would have permitted imposition of consecutive sentences had the charges been consolidated in a single proceeding. In Ashe, separate convictions of the robbery of each victim would have required proof in each case that a different individual had been robbed. See Ebeling v. Morgan, 237 U.S. 625 (1915). In Nielsen, conviction for adultery required proof that the defendant had sexual intercourse with one woman while married to another; conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Nonetheless, the Court in both cases held the separate offenses to be the "same" for purposes of protecting the accused from having to "`run the gantlet' a second time." Ashe, supra, at 446, quoting from Green v. United States, 355 U.S. 184, 190 (1957).
Because we conclude today that a lesser included and a greater offense are the same under Blockburger, we need not decide whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to the additional protection offered by Ashe and Nielsen.
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