Double Jeopardy in a Lesser Included Offense

Brown and Harris appeared at first impression to demand the reversal of Sekou's murder conviction. Case law that came after the events in question in the Supreme Court illuminated the salient issues. A key ingredient of court’s decision and the final disposition of the case in Harris was the state's concession that the crime of robbery for which the defendant had been indicted was the underlying felony which had been proven in the earlier prosecution. If this particular circumstance had not in fact been true, the armed robbery would not have been a lesser included offense of the murder.

In the appeal that was at issue in the case, if the state could have proven murder without proving robbery the prosecutions that came afterward did not constitute prosecutions for the same offense as that term is defined as it relates to the Double Jeopardy Clause. Once the state tried and convicted for armed robbery, it was thereafter completely prohibited from prosecuting him for felony-murder or any other included offense only if the sole underlying felony upon which that prosecution was based was the armed robbery, but not necessarily if other events had transpired that were not material to the charge.

Due Process Procedure in the Courts

Jarvis was tried and convicted in June of 2003. The judge and the Florida Superior Court noted that his indictment for second degree armed robbery and third degree aggravated assault were perfectly proper under Florida law as it then existed at the time. Courts are frequently not nearly as confident as are the Florida courts that this submission procedure cannot present a due process problem of great magnitude. They had found, however, that in the situation that existed then that the procedure did not operate to deny the suspect of his sixth amendment and fourteenth amendment due process rights or any other rights. The propriety of his indictment and conviction for that matter had therefore become purely and without reservation a question of state law only, and it would be inappropriate for them to pursue the matter further because it is not within their jurisdiction.

Notice of Proof Offered at Trial

A person's right under the Sixth Amendment to a reasonable degree of notice of the charges against him is incorporated into the Fourteenth Amendment to the United States Constitution and it therefore cannot be taken away by the states. In many law suits and appeals fair notice and other types of due process claims are available in habeas corpus. Thomas contends that the murder indictment contained all of the elements of first degree felony murder, that the proof that was offered at trial varied from the indictment, and that the state of Kentucky in effect modified or amended the indictment by trying him for first degree felony murder even though that was not the offense committed. He therefore claims that he did not have any reasonable notice in the least of the charges against him until it was too late and that his sixth amendment and fourteenth amendment due process rights were violated.