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• Title: State Alaska v. Casimer Kott
• Author : Court Of Appeals Of Alaska
• Release Date : January 19, 1981
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 57 KB

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SINGLETON, Judge. OPINION This is a petition for review of a summary judgment of acquittal entered by the district court dismissing the complaint against defendant on the ground that his prosecution was barred by collateral estoppel. The state first petitioned the superior court for review of the district court's decision. Upon denial by the superior court, the state renewed its petition in this court. Having concluded that the petition challenges a final judgment, we have determined to treat the petition as an appeal. Jordan v. Reed, 544 P.2d 75, 78-79 (Alaska 1975). 1 The trial Judge termed his judgment an acquittal. Generally judgments of acquittal are not reviewable on appeal by the state. See Selman v. State, 406 P.2d 181 (Alaska 1965). Both the state and federal constitutional prohibitions against placing a defendant twice in jeopardy insulate him from an appeal from a judgment of acquittal however erroneous the trial Judge's view of the facts or the law. However, both state and federal courts have held that the reviewing court is not bound by the trial court's characterization of its order but must look to the legal effect of what actually was done. See United States v. Jorn, 400 U.S. 470, 478 n.7, 27 L. Ed. 2d 543, 552, 91 S. Ct. 547 (1971) (opinion of Harlan, J.); Selman v. State, 406 P.2d at 186. Here the trial Judge neither heard all of the evidence against respondent nor concluded that a reasonable jury could not find him guilty beyond reasonable doubt based upon that evidence. Rather, he concluded that a judgment of acquittal previously entered in favor of a co-defendant barred trial of respondent under the doctrine of collateral estoppel. Thus, the trial court in effect granted the defendant summary judgment. Such a pretrial ruling prior to the attachment of jeopardy through the swearing of the jury does not preclude appellate review by virtue of the prohibition against placing a defendant twice in jeopardy. See Serfass v. United States, 420 U.S. 377, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975). The United States Supreme Court has held that nothing in the double jeopardy clause of the federal constitution forecloses putting the defendant to trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. See Standefer v. United States, 447 U.S. 10, 64 L. Ed. 2d 689, 100 S. Ct. 1999 (1980). We see no reason to interpret our state constitution's double jeopardy clause differently. Consequently, we conclude that the trial Judge's characterization of his decision as a judgment of acquittal was erroneous and that the judgment should have been characterized as a dismissal based upon a plea in bar, i.e., nonmutual collateral estoppel. The double jeopardy clause does not preclude retrial after such an order of dismissal if the order was erroneous, and consequently, the superior court and this court may review the case. 2 See United States v. Jorn, 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971); Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction, § 3919, at 675 (1976).

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