432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)
On November 29, 1973, Nathaniel Brown stole a 1965 Chevrolet from a parking lot in East Cleveland, Ohio.1 Nine days later, on December 8, 1973, Brown was caught driving the car in Wickliffe, Ohio.2 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).3 The complaint charged that on or about December 8, 1973, Nathaniel H. Brown did unlawfully and purposely take, drive or operate the 1965 Chevrolet without the consent of the owner Gloria Ingram.4 Brown pleaded guilty to this charge and was sentenced to 30 days in jail and a $100 fine.5
Upon his release from jail on January 8, 1974, Brown was returned to East Cleveland to face further charges.6 On February 5 he was indicted by the Cuyahoga County grand jury on two counts charging the theft of the car on or about the 29th day of November 1973 and joyriding on the same date.7 A bill of particulars specified that on or about the 29th day of November, 1973, Nathaniel Brown unlawfully did steal a Chevrolet motor vehicle and take, drive or operate such vehicle without the consent of the owner, Gloria Ingram.8 Brown objected to both counts on the basis of former jeopardy.9
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.10 The court overruled Brown's double jeopardy objections and sentenced Brown to six months in jail but suspended the sentence and placed Brown on probation for one year.11
The Ohio Court of Appeals affirmed after holding that the two prosecutions involved separate acts on November 29 and December 8.12 The Ohio Supreme Court denied leave to appeal.13 The Supreme Court of the United States granted certiorari to consider Brown's double jeopardy claim.14
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?15
The Double Jeopardy Clause bars successive prosecutions for greater and lesser included offenses. Under the Blockburger test, two offenses are the same if one does not require proof of a fact that the other does not. Joyriding under Ohio law requires no proof beyond that required for auto theft because it is a lesser included offense.16
Yes. The joyriding offense, for which Brown was convicted and sentenced to 30 days in jail, consists of taking or operating a vehicle without the owner's consent.17 Auto theft requires proof of that element plus the intent to permanently deprive the owner of possession.18 Because every element of joyriding is included in auto theft, the offenses are the same under the Blockburger test.19
The subsequent prosecution and punishment for auto theft therefore violated the Double Jeopardy Clause by twice placing Brown in jeopardy for the same offense.20
The Double Jeopardy Clause bars prosecution and punishment for auto theft following the joyriding conviction and sentence.21
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan, joined by Justice Marshall, concurred in the Court's opinion.22 He would have reversed on the ground that the State did not prosecute the petitioner in a single proceeding.23 Brennan adheres to the view that the Double Jeopardy Clause requires the prosecution in one proceeding of all charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction, except in extremely limited circumstances not present here.24
He would hold that all such charges must be tried in a single proceeding and would therefore reverse on that basis.25
Joined by The Chief Justice And Mr. Justice Rehnquist
Justice Blackmun, joined by the Chief Justice and Justice Rehnquist, dissented.26 He had no quarrel with the Court's general double jeopardy analysis.27 Blackmun could not accept the disregard of the Ohio Court of Appeals' finding that the two prosecutions rested on separate and distinct acts committed nine days apart in different communities.28
He noted that nine days elapsed here and the automobile moved from East Cleveland to Wickliffe.29 Blackmun concluded that the Ohio courts could properly find the acts sufficiently distinct to justify a second prosecution consistent with the Double Jeopardy Clause.30 On these facts no requirement that the entire course of conduct be treated as one offense should be inferred.31