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Tritt v. State (4/28/2006) ap-2047

Tritt v. State (4/28/2006) ap-2047

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9600
Petitioner, ) Trial Court No. 4FA-05-3114 Cr
v. )
) O P I N I O N
Respondent. ) No. 2047 April 28, 2006
          Petition for Review from the Superior  Court,
          Fourth Judicial District, Fairbanks, Mark  I.
          Wood, Judge.

          Appearances:  Geoffry B. Wildridge and Marcia
          E.   Holland,  Assistant  Public   Defenders,
          Fairbanks,   and   Quinlan  Steiner,   Public
          Defender,   Anchorage,  for  the  Petitioner.
          Elizabeth   F.   Crail,  Assistant   District
          Attorney,  and  Jeffrey A. OBryant,  District
          Attorney,  Fairbanks, and David  W.  M rquez,
          Attorney General, Juneau, for the Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Cordell Tritt stands charged with felony driving  under
the  influence.   Tritt was brought to trial on  this  charge  in
December  2005,  but  that trial ended when  the  superior  court
declared  a  mistrial without Tritts consent.   Facing  a  second
trial,  Tritt filed a motion asking the superior court to dismiss
the  charge against him on double jeopardy grounds.  The superior
court  ruled  that  there  had been manifest  necessity  for  the
mistrial,  and  the  court  accordingly  ruled  that  the  double
jeopardy  clause did not bar a second trial.  Tritt now petitions
this Court to review (and reverse) the superior courts ruling.
          The  ultimate  question is whether there  was  manifest
necessity  for  the  mistrial.  But  the  immediate  question  is
whether  this Court should grant Tritts petition and  order  full
briefing of the merits of the mistrial issue.
          The  State  argues that we should deny Tritts  petition
for  review because Tritt has shown no reason to deviate from the
normal  rule that an appellate court will not consider challenges
to  a trial courts rulings until after the trial court has issued
a final judgement.  The State writes:
          Tritt  has  not  identified any circumstances
          that would make [his case] any different from
          [the] ordinary [case].  ...  Tritt appears to
          simply assume that rulings by trial judges in
          criminal cases should be reviewed as they are
          made, rather than after a final judgment  has
          [been]  entered.  Because this assumption  is
          incorrect,  [Tritts petition] ...  should  be
                    The  States  argument is incorrect.
          This  Court  is, in fact, legally obliged  to
          grant  Tritts petition and to order  briefing
          on the merits.  However, the State had little
          way  of  knowing this  which is  why  we  are
          taking   the  unusual  step  of   issuing   a
          published opinion explaining our decision  to
          grant this petition for review.
          A  few  months ago, in  Artemie  v.
State, File No. A-9286, this Court received a
similar  petition for review.  The petitioner
in  Artemie had gone to trial; that trial had
ended in a mistrial without his consent;  and
the  superior court had ordered him to  stand
trial  a  second time, despite his contention
that  a second trial was barred by the double
jeopardy  clause.   Artemie  then  petitioned
this  Court  to  review the  superior  courts
          This  Court, by a two-to-one  vote,
denied  Artemies petition  essentially ruling
that  Artemie was obliged to wait until after
the superior court issued its final judgement
before  Artemie could obtain appellate review
of   the   superior  courts  double  jeopardy
decision.  The dissenting opinion argued that
it  was  improper for an appellate  court  to
deny   interlocutory  review  of   a   double
jeopardy  claim  since, if the defendant  was
right,    the    defendant    would    suffer
constitutional harm just by being  forced  to
undergo  a  second trial, regardless  of  how
that trial ended.  See Artemie v. State, File
No. A-9286, Order dated July 11, 2005.
          After  this  Court denied  Artemies
petition for review, Artemie filed a petition
for   hearing  in  the  supreme  court.   The
supreme  court granted hearing and issued  an
order  directing this Court to grant Artemies
petition  for review.  See Artemie v.  State,
File  No.  S-12026, Order dated December  15,
2005.   Here is the text of that order  (with
the  sole  footnote incorporated as bracketed

     Petitioner seeks reversal of  the  court
of  appealss  ... order denying his  petition
for  review on his claim of double  jeopardy.
Upon   consideration  of  his  petition   for
hearing and the states response,


     The  petition  for hearing  is  GRANTED.
The  court of appealss order ... denying  the
petition  for review is VACATED.  We conclude
that in all but patently unmeritorious cases,
the  court of appeals should grant and decide
petitions  seeking review of a  denial  of  a
defendants  pretrial  motion  to  dismiss  on
double jeopardy grounds.  [See MacPherson  v.
State,  533  P.2d 1103, 1104 & n.  3  (Alaska
1975);  Peel  v. State, 751 P.2d  1366,  1368
(Alaska   App.  1988).]    [This]   case   is
therefore  REMANDED to the court  of  appeals
with  directions  to grant the  petition  for
review  and  decide the merits of the  double
jeopardy issue.

          The supreme courts order in Artemie
settles  the issue of whether a petition  for
review such as Tritts should be granted.   As
the  supreme  court declared in  that  order,
when  a  trial court has denied a  defendants
motion  to dismiss criminal charges on double
jeopardy grounds, and the defendant  files  a
petition  seeking review of the trial  courts
decision,   this  Court  should   grant   the
petition  i.e., agree to decide the merits of
the  defendants  underlying  double  jeopardy
claim,  even  though no final  judgement  has
been  entered   unless the defendants  double
jeopardy claim patently has no merit.
          However,    the    supreme    court
neglected  to publish its order  in  Artemie.
Thus,  many attorneys and trial court  judges
may  be unaware of the rule that governs  our
consideration  of this type of  petition  for
review.  For this reason, we have decided  to
issue  a  published  opinion  explaining  our
decision to grant review in this case.
          The petition for review is GRANTED.
          (We  have  issued a separate  order
specifying  the procedures for preparing  the
transcript and record on appeal, and for  the
briefing and argument of this case.)

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