State v. Maguire

BENCH, Judge

(concurring):

¶ 14 I agree with the analysis of defendant’s double jeopardy claim. I write separately to register my concerns about whether we should even be discussing the issue.

¶ 15 Defendant never suggested to the trial court that double jeopardy barred sentencing on his second plea because he had already completed his first sentence. He urged only that section 76-3^05 of the Utah Code prohibits a harsher second sentence. Defendant therefore did not preserve in the trial court the double jeopardy issue he now raises.

¶ 16 On appeal to this court, in State v. Maguire, 924 P.2d 904 (Utah Ct.App.1996), rev’d, 957 P.2d 598 (Utah 1998), defendant briefly mentioned double jeopardy but failed to cite any relevant authority or provide any analysis of the issue. We could therefore properly decline to address it. See, e.g., State v. Wareham, 772 P.2d 960, 966 (Utah 1989) (declining to address issue when “brief wholly lacks legal analysis and authority to support” argument); Selvage v. J.J. Johnson & Assocs., 910 P.2d 1252, 1264 (Utah Ct.App.1996) (declining to address issue where party “cites no authority” or “any further analysis” in support of argument); State v. Price, 827 P.2d 247, 249 & n. 5 (Utah Ct.App.1992) (refusing to consider argument unsupported by legal analysis or authority); State v. Reiners, 803 P.2d 1300, 1301 n. 2 (Utah Ct.App.1990) (declining to address issue where “argument contains no citations to authorities and only vague reasoning”); see also Utah R.App. P. 24(a)(9) (requiring argument on appeal to contain “the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes and parts of the record relied on”).

¶ 17 Defendant argued the double jeopardy issue for the first time in proceedings before the supreme court. See State v. Maguire, 957 P.2d 598, 599-600 (Utah 1998). Then, in the brief defendant filed in this court after remand, he incorporated this double jeopardy argument.

¶ 18 Although defendant has not properly preserved the issue, we are compelled to address it on remand. In State v. Brooks, 908 P.2d 856, 860 (Utah 1995), the supreme court held that Rule 22(e) of the Utah Rules of Criminal Procedure permits appellate courts to review the legality of a sentence, even when the issue is raised for the first time on appeal. I am not persuaded by the rationale of Brooks because, like any other issue, the trial court should have the first opportunity to rule on the question. Nevertheless, I recognize that Brooks is controlling law.

¶ 19 It is unfortunate that the supreme court did not resolve the double jeopardy issue when it was argued to that court. In the interest of judicial economy, the supreme court should have definitively decided the issue, just as it did in Brooks. See id. at 861 (“[W]e could remand the matter to the court of appeals.... However, considerations of judicial economy suggest that we dispose of these issues ourselves.”).

¶ 20 Since we must now reach the question as to whether double jeopardy was violated, I fully concur in the main opinion’s analysis of the issue.