State v Robertson

Robertson sought review of the Utah Court of Appeals decision rejecting his claim that his state child pornography prosecution violated double jeopardy as he had already been tried for federal child pornography violations and the facts involved here were identical. The Court reversed. It held that in its only decision as to whether Utah Code 76-1-404 incorporates or rejects the dual sovereign doctrine, state v Franklin, the Court decided the issue and the decision was 404 incorporates the doctrine. It held that the Franklin precedent should be overruled because Franklin did not consider the language of 404 aside from the phrase “same offense” in any great depth and failed to give effect to the bar on prosecution if another jurisdiction has already prosecuted and there is no case where another jurisdiction would not also be a different sovereign rendering 404 a superfluous law; Franklin’s rule has not worked its way into the law as no other cases reaffirmed franklin, no statutes or common law doctrines are impacted by it and no vested property or contractual rights would be implicated by overturning it; and serration of powers counsels that the legislature’s intent to expand double jeopardy protections should be respected. It held that 404 applies when the charged crime is the “same offense” legally, that is whether one charged crime requires proof of a fact the other does not and whether the evidence relied upon to prove the unit of persecution is the same. The Court adopted the majority rule on retroactive application of new criminal substantive rules which aim to preserve legislative monopoly on defining crimes and to protect against conviction under an improper prior interpretation and held that new criminal substantive rules apply retroactively on direct and collateral review and this decision applies retroactively as 404 creates a substantive affirmative defense. It noted that those seeking post-conviction relief under this new precedent are subject to preservation rules and must abide the post-conviction remedies act. Applying here, the Court held Utah’s prosecution was barred as the state child pornography statute defines a lesser included offense of federal child pornography statutes as the two have the same elements except for the federal commerce clause jurisdictional element and the charges were factually the same as both were based on the same images and videos found on the same computers and other electronics.