In Dere v. State,[1] the court of appeals held that it was not a violation of the double jeopardy clause to be retried on a greater charge, even if already found guilty of a lesser included charge. Dere was charged with robbery, assault, and theft. During deliberations, the foreman indicated the jury was deadlocked as to the robbery charge. The judged declared a mistrial on the robbery charge, but allowed the jury to continue deliberations on the two remaining charged. The jury convicted Dere on the assault and theft charges. Dere was retried for robbery and found guilty. On appeal, Dere argued that it was a violation of the double jeopardy clause for the State to retry him on the robbery charge because he had already been found guilty of the lesser included charges of assault and theft. The court of appeals upheld the conviction, explaining that its holding in Hughes stood for the rule that where a criminal trial ends before the jury has reached a verdict, such as when the jury is hung, a retrial is a continuation of the defendant’s initial jeopardy and is not a successive prosecution. The court found that the double jeopardy clause and statutory rule protect only against successive prosecutions for a greater or lesser offense. The court declined to overrule the holding set out in Hughes. The court affirmed the conviction, holding that it was not a violation of the double jeopardy clause to be retried on a greater charge, as this was a continuation of the initial prosecution, not a successive prosecution.
[1] 444 P.3d 204 (Alaska App. Ct. 2019).
