The Double Jeopardy Clauses of both the federal and the Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. The same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one is whether each provision requires proof of a fact which the other does not. The same elements test asks whether each offense contains an element not contained in the other, or, more precisely, whether each provision requires proof of a fact which the other does not. If not, they are the same offense and double jeopardy bars additional punishment. If so, they are not the same offense and double jeopardy is not a bar to additional punishment.
Defendant was driving a motor vehicle that struck and killed a victim. The trial court convicted defendant of several charges in connection with the accident, including manslaughter and motor vehicle homicide. On appeal, the court partially upheld and partially reversed the trial court’s judgment.
Did defendant’s convictions for manslaughter and motor vehicle homicide violate the Double Jeopardy Clauses of the state and federal Constitutions, because manslaughter was a lesser-included offense of motor vehicle homicide?
The unlawful act of manslaughter was a lesser-included offense of motor vehicle homicide. Thus, defendant was subjected to multiple punishments, in violation of the Double Jeopardy Clause, by his convictions and sentences for motor vehicle homicide and manslaughter. Because defendant was convicted of both a greater and a lesser-included offense, the conviction and sentence on the lesser charge should be vacated.