State v. Gosselin

25 Citing cases

  1. Petition of State of N.H

    908 A.2d 155 (N.H. 2006)   Cited 3 times

    Prior convictions obtained when a defendant was not represented by counsel and did not knowingly and intelligently waive his right to counsel cannot be used as the basis for an enhanced sentence. State v. Gosselin, 117 N.H. 115, 121, 370 A.2d 264 (1977). If it is evident from the record, or if the defendant presents evidence that places in dispute the question of whether he was represented by counsel, the burden is then upon the State to prove representation by counsel or a knowing and intelligent waiver of that right. Id. However, where nothing in the record of the prior conviction "raise[s] the presumption of either lack of counsel or an invalid waiver of that right, it [is] incumbent on the defendant, not the state, to go forward with evidence which [puts] in issue the question of whether he had previously been represented by counsel."

  2. State v. Houtenbrink

    130 N.H. 385 (N.H. 1988)   Cited 8 times
    In Houtenbrink, the defendant's use of a deadly weapon (a gun) had elevated the offense of simple assault, a misdemeanor, to first degree assault, a class A felony.

    Id. at 150, 95 A.2d at 791. In State v. Gosselin, 117 N.H. 115, 370 A.2d 264 (1977), we held that a defendant who possessed a loaded revolver could be tried and convicted for the misdemeanor offense of carrying a gun without a license and also tried and convicted for being a felon in possession of a revolver. Id. at 118-19, 370 A.2d at 267-68.

  3. State v. Heinz

    119 N.H. 717 (N.H. 1979)   Cited 12 times
    In State v. Heinz (N.H. 1979), 407 A.2d 814, Heinz, who had previously pled guilty in federal court to embezzlement, raised a double jeopardy challenge to state court charges against him of theft by misapplication.

    Both the fifth amendment to the United States Constitution and part I, article 15 of the New Hampshire Constitution protect a citizen from being twice tried and convicted for the same offense. State v. Gosselin, 117 N.H. 115, 118, 370 A.2d 264, 267 (1977); see Brown v. Ohio, 432 U.S. 161 (1977). [1, 2] The defendant has the burden of showing, by a preponderance of the evidence, that the offense for which he was previously acquitted or convicted is the same as the one subsequently charged.

  4. State v. McNally

    122 N.H. 892 (N.H. 1982)   Cited 5 times

    [1-3] The double jeopardy protection afforded by the Federal and State Constitutions prohibits a citizen from being convicted twice for the same offense. State v. Heinz, 119 N.H. 717, 720, 407 A.2d 814, 816 (1979); State v. Gosselin, 119 N.H. 115, 118, 370 A.2d 264, 267 (1977). Jeopardy will not attach if the second offense is different in either law or fact.

  5. State v. Ward

    118 N.H. 874 (N.H. 1978)   Cited 9 times
    Discussing proof that defendant is same person who has been convicted of offenses listed in habitual offender petition

    Prior convictions obtained when a person entitled to counsel was neither represented by counsel nor knowingly and intelligently waived his right to counsel cannot be used to support a habitual offender finding. State v. Gosselin, 117 N.H. 115, 121, 122, 370 A.2d 264, 269 (1977); State v. Maxwell, 115 N.H. 363, 341 A.2d 766 (1975). In only one of defendant's prior convictions, No. 8 on the motor vehicle abstract, was he subject to a possible penalty of imprisonment, and thus entitled to counsel.

  6. State v. Macleod

    141 N.H. 427 (N.H. 1996)   Cited 19 times
    Recognizing trial court's authority to curb overcharging by prosecutor that constitutes harassment

    The two offenses are therefore not the same for purposes of the State constitutional protection against double jeopardy. See State v. Brooks, 137 N.H. 541, 542-43, 629 A.2d 1347, 1348 (1993); State v. Gosselin, 117 N.H. 115, 117-18, 370 A.2d 264, 267 (1977). Our conclusion is not affected by the defendant's claim that the State might utilize overlapping or reciprocal evidence to establish both offenses: his excessive rate of speed might be offered to establish impairment for the intoxication element of aggravated driving while intoxicated, while his intoxication might be used to establish the recklessness element of second degree assault.

  7. Heald v. Perrin

    123 N.H. 468 (N.H. 1983)   Cited 23 times
    In Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), on which the defendant relies, we vacated a conviction and sentence for felonious use of a firearm, see RSA 650-A:1 (1996), because the use of a gun had already been used to increase the offense of robbery from a class B to a class A felony.

    [4, 5] In deciding the merits of the plaintiff's double jeopardy claim under the New Hampshire Constitution, however, our inquiry centers on whether the imposition of sentences for both armed robbery and the felonious use of a firearm constitutes the imposition of more than one sentence for the same offense. State v. Gosselin, 117 N.H. 115, 118, 370 A.2d 264, 267 (1977); see North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Our constitution

  8. State v. Locke

    166 N.H. 344 (N.H. 2014)   Cited 8 times
    Noting that our cases have not consistently applied our "same evidence" test and "invit[ing] parties in future cases to ask us to reconsider our double jeopardy jurisprudence"

    Green, 355 U.S. at 187, 78 S.Ct. 221. Although in State v. Gosselin, 117 N.H. 115, 118–19, 370 A.2d 264 (1977), we declined to adopt a same criminal episode test to determine whether two offenses are the same for double jeopardy purposes, we specifically contemplated adopting that test as a common law rule of joinder. There, we observed that "[a]ny abuse by prosecutors in harassing defendants could be remedied ... by the adoption of court rules requiring joinder of criminal charges."

  9. State, Booth v. Twenty-First Jud. Dist

    292 Mont. 371 (Mont. 1998)   Cited 18 times
    Considering both the statute and constitutional double jeopardy

    The definitional statute fully anticipated this kind of problem when it provided that the definitions contained therein would not apply when "the context requires otherwise." ¶ 42 In order to give effect to the obvious purpose of §§ 503 and 504, I would apply the definition of "same transaction" discussed in the double jeopardy context by the New Hampshire Supreme Court in State v. Gosselin (N.H. 1977), 370 A.2d 264, where that court stated that the "same transaction" test requires the prosecution `to join at one trial 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, 453-54, 90 S.Ct. 1189, 1199, 35 L.Ed.2d 469 (1970) (Brennan, J., concurring); Duncan v. Tennessee, 405 U.S. 127, 132, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972) (Brennan, J., dissenting).

  10. People v. Calderon

    9 Cal.4th 69 (Cal. 1994)   Cited 183 times
    Finding the trial court committed error because it denied the defendant's motion to bifurcate the trial on the prior conviction "without considering the particular circumstances of the case before the court"

    , subdivision (a) (1993); Alaska Statutes section 12.55.145, subdivision (d) (1993); Arkansas Code Annotated section 5-4-502 (Michie 1993); Delaware Code Annotated title 11, section 4215, subdivision (a) (1993); District of Columbia Code Annotated section 23-111, subdivision (c)(1) (1993); Florida Statutes Annotated section 775.084, subdivision (3) (West 1993); State v. Huelsman (1978) 60 Haw. 71, 77 [ 588 P.2d 394, 398]; Illinois Annotated Statutes chapter 720, paragraph 33B-2, subdivision (a) (Smith-Hurd 1994); Kansas Statutes Annotated section 21-4504, subdivision (f) (1992); Louisiana Revised Statutes Annotated section 15:529.1, subdivision (D) (West 1992); Maryland Rules, rule 4-245; Minnesota Statutes Annotated section 244.10 (West 1993); Mississippi Uniform Rules of Circuit Court Practice, rule 6.04; Montana Code Annotated section 46-13-108, subdivision (4) (1993); Nebraska Revised Statutes section 29-2221, subdivision (2) (1993); Nevada Revised Statutes section 207.010 (1993); State v. Gosselin (1977) 117 N.H. 115, 121 [ 370 A.2d 264, 269]; New Jersey Statutes Annotated section 2C:44-3 (West 1993); New Mexico Statutes Annotated section 31-18-20, subdivision (C) (Michie 1993); New York Criminal Procedure Law section 400.20, subdivision (9) (McKinney 1994); North Dakota Century Code section 12.1-32-09 (1993); Oregon Revised Statutes section 161.735, subdivision (6) (1993); 42 Pennsylvania Consolidated Statutes Annotated section 9714, subdivision (c) (Purdon 1993); Rhode Island General Laws section 12-19-21 (1993); Block v. State, supra, 41 Wis.2d 205 [ 163 N.W.2d 196, 199-200]. Colorado Revised Statutes section 16-13-103 (1993); Indiana Code Annotated section 35-38-1-2 (1994); Iowa Code Annotated section 813.2, rule 18, subdivision (9) (West 1993); Kentucky Revised Statutes Annotated section 532.080 (Michie/Bobbs-Merrill 1994); Maine Revised Statutes Annotated title 15, section 757, subdivision (2) (West 1993); Massachusetts General Laws Annotated chapter 278, section 11A (West 1994); Michigan Compile