              IN THE SUPREME COURT OF IOWA
                               No. 07–1202

                          Filed January 30, 2009


STATE OF IOWA,

      Appellant,

vs.

JOHN JOSEPH KRAMER,

      Appellee.



      Appeal from the Iowa District Court for Muscatine County,

James E. Kelley, Judge.



      The State appeals a district court’s grant of defendant’s motion for

acquittal of driving a motor vehicle while intoxicated, first offense.

AFFIRMED.



      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant

Attorney General, Gary Allison, County Attorney, and Alan R. Ostergren,

Assistant County Attorney, for appellant.



      Thomas G. Reidel, Muscatine, for appellee.
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BAKER, Justice.

      The State appeals the trial court’s dismissal of this criminal case

on double jeopardy grounds.        Initially, the court orally granted the

defendant’s motion for judgment of acquittal for insufficiency of the

evidence, but then immediately reversed this ruling upon being informed

that the evidence thought lacking was in the record.              Upon the

defendant’s objection that this reversal violated the Double Jeopardy
Clause, the court dismissed the case.       We are asked to decide:       (1)

whether a court may immediately revise an oral ruling on a motion for

judgment of acquittal without offending double jeopardy principles, and

(2) whether double jeopardy bars retrial when the court sustains a

judgment of acquittal on double jeopardy grounds based on the

erroneous belief that it cannot immediately correct an erroneous

judgment of acquittal. Although we determine the court’s initial ruling

was subject to immediate revision without offending double jeopardy, we

affirm the final dismissal because to reinstate the case now after the jury

has been dismissed and the acquittal entered on the docket would violate

double jeopardy.

      I. Background Facts and Proceedings.
      The defendant, John Kramer, was arrested for operating a motor

vehicle while intoxicated.   The Muscatine County Attorney filed a trial

information accusing Kramer of operating a motor vehicle while

intoxicated, second offense, but later filed a supplemental information

changing the charge to operating a motor vehicle while intoxicated, first

offense. A jury trial was held on June 6, 2007. At the close of the State’s

case, outside the presence of the jury, Kramer’s attorney moved for a

“judgment of acquittal. . . [claiming] that the State ha[d] failed to present

sufficient evidence regarding the driver of the vehicle for the Court to
                                      3

allow this matter to go further.” In response, the district court ordered “a

directed verdict of acquittal on the defendant’s motion,” declaring the

“evidence, taken in the light most favorable to the State would not

support a finding beyond a reasonable doubt that the defendant was

operating a motor vehicle at the time and place as alleged.” The court

went on to state: “Now, at that point the Court orders a directed verdict

of acquittal on the defendant’s motion.”       The State then pointed out
evidence that Kramer admitted he was driving. After reviewing the court

transcript and determining that Kramer had actually admitted to driving,

the court revised its previous ruling stating: “With that in the record, the

Court revises its ruling, and the Court overrules the motion for directed

verdict of acquittal,” stating, “[t]here is just barely sufficient evidence to

take this to a jury.”

      After the court’s revision, the defense protested that “when the

Court uttered the words ‘the motion for acquittal is granted,’ that that

attached immediately to the defendant, and that said ruling was not

subject to revision.” The court agreed with the defense, stating: “Good.

Take it up. It’s directed. Goodbye. We’re done.” The prosecution then

inquired of the court as to what had just happened and argued that the
court had the ability to correct its mistake, also noting that if the ruling

stands jeopardy attaches. The court then stated: “Well mark this one up

for me. My mistake. But I’m going to say the ruling stands.”

      It is not clear at what point the jury was discharged; however, no

further proceedings occurred after this discussion. The court calendar

entry for June 6, 2007, states “[t]he Court orders this case dismissed.”

The combined general docket also states that the defendant’s motion for

directed verdict was granted and the case dismissed. The State appeals,

claiming: (1) that the trial court erred in initially granting the directed
                                      4

verdict of acquittal; (2) that the trial court erred in claiming that it could

not immediately correct its oral grant of acquittal before the judgment

was entered; and (3) that double jeopardy principles do not prevent

retrial of this matter.

      II. Scope of Review.

      A verdict of acquittal cannot be reviewed, whether for error or

otherwise, without violating the Double Jeopardy Clause. State v. Taft,
506 N.W.2d 757, 760 (Iowa 1993) (citing United States v. Martin Linen

Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354, 51 L. Ed. 2d 642,

651 (1977)). Therefore, we do not address the State’s claim that the trial

court erred in initially granting the verdict of acquittal on insufficiency of

the evidence grounds. On the State’s claim that the court erred in ruling

that it could not immediately correct an oral grant of acquittal without

offending double jeopardy, this is a constitutional claim, and the

appropriate standard of review is de novo. State v. Burgess, 639 N.W.2d

564, 567 (Iowa 2001) (citing State v. Washburne, 574 N.W.2d 261, 263

(Iowa 1997) (other citations omitted)).     On the State’s claim that the

defendant can be retried based on the court’s error, this too is a double

jeopardy issue, and the appropriate standard of review is de novo. Id.
      III. Double Jeopardy Principles.

      The State appeals the district court’s dismissal of the State’s case

on double jeopardy grounds, arguing the court erroneously determined

that it could not correct an oral ruling granting a judgment of acquittal at

the close of the prosecution’s case without violating the defendant’s

double jeopardy rights. It contends that oral rulings are not final until

entered in writing, are subject to change before entry, and therefore do

not terminate a defendant’s jeopardy.
                                     5

        In ultimately granting Kramer’s motion for directed verdict of

acquittal, the district court accepted his argument that “when the Court

uttered the words ‘the motion for acquittal is granted’ that [double

jeopardy] attached immediately to the defendant and that said ruling was

not subject to revision.” The district court did not clarify whether this

decision was based upon the United States Constitution Double

Jeopardy Clause, the Iowa Constitution double jeopardy provision, or
both.

        The Double Jeopardy Clause of the United States Constitution “is

applicable to state criminal trials through the Fourteenth Amendment

due process provision.”    State v. Franzen, 495 N.W.2d 714, 715 (Iowa

1993) (citing Benton v. Maryland, 395 U.S. 784, 794–95, 89 S. Ct. 2056,

2063, 23 L. Ed. 2d 707, 715–16 (1969)).          The same constitutional

standards for determining when double jeopardy attaches must be used

in both federal and state courts. Id. at 715–16 (citing Crist v. Bretz, 437

U.S. 28, 32, 98 S. Ct. 2156, 2159, 57 L. Ed. 2d 24, 29 (1978)).

Therefore, we will analyze this case under federal double jeopardy

standards.

        The Double Jeopardy Clause protects against:         (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.     Taft, 506 N.W.2d at 760 (citing North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664–

65 (1969)). We have previously stated:

               The constitutional prohibition against double jeopardy
        was “designed to protect an individual from being subjected
        to the hazards of trial and possible conviction more than
        once for an alleged offense.” It is based upon the principles
        of finality and the prevention of prosecutorial overreaching.
        The principle reflects a concern that a state should not be
                                     6
      allowed to make repeated attempts to convict an individual
      for an alleged offense.

Franzen, 495 N.W.2d at 716 (quoting Green v. United States, 355 U.S.

184, 187, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199, 204 (1957)) (other

citations omitted). The protections of the Double Jeopardy Clause are

implicated only when the accused is actually placed in jeopardy. Martin

Linen, 430 U.S. at 569, 97 S. Ct. at 1353, 51 L. Ed. 2d at 650 (citing

Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 1062, 43 L.

Ed. 2d 265, 274 (1975)). “This state of jeopardy attaches when a jury is

empaneled and sworn, or, in a bench trial, when the judge begins to

receive evidence.” Id. (citing Illinois v. Somerville, 410 U.S. 458, 471, 93

S. Ct. 1066, 1073, 35 L. Ed. 2d 425, 435 (1973) (White, J., dissenting)).

It terminates when the jury reaches a verdict or the trial judge enters a

final judgment of acquittal. United States v. Byrne, 203 F.3d 671, 673

(9th Cir. 2000) (citing Fong Foo v. United States, 369 U.S. 141, 143, 82 S.

Ct. 671, 672, 7 L. Ed. 2d 629, 631 (1962)). The question, therefore, is

when an acquittal is considered a final judgment.

      The State asserts that “[a] judgment is not valid and final until the

clerk enters the court’s order in the record book.” Thus, it argues, before

entry of final judgment, the court’s rulings are interlocutory, and the

court remains free to correct an erroneous grant of acquittal. Kramer

argues that the moment the district court uttered the words “the motion

for acquittal is granted,” jeopardy terminated, and the ruling could not

be revised.

      The United States Supreme Court declared, “we have long held

that the Double Jeopardy Clause of the Fifth Amendment prohibits

reexamination of a court-decreed acquittal to the same extent it prohibits

reexamination of an acquittal by jury verdict.” Smith v. Massachusetts,
                                        7

543 U.S. 462, 467, 125 S. Ct. 1129, 1133, 160 L. Ed. 2d 914, 922

(2005).     The Court defines an acquittal as an order that “actually

represents a resolution, correct or not, of some or all of the factual

elements of the offense charged.”        Martin Linen, 430 U.S. at 571, 97

S. Ct. at 1354, 51 L. Ed. 2d at 651 (emphasis added). The Court also

stated:

         [A] judgment of acquittal is a substantive determination that
         the prosecution has failed to carry its burden. Thus, even
         when the jury is the primary factfinder, the trial judge still
         resolves elements of the offense in granting a . . . motion [for
         a directed verdict of acquittal].
Smith, 543 U.S. at 468, 125 S. Ct. at 1134–35, 160 L. Ed. 2d at 923. In

this case, the district court judge initially stated “the Court orders a

directed verdict of acquittal on the defendant’s motion.”

         We are first asked to decide what is a final judgment under the

Double Jeopardy Clause, i.e., whether the district court can reconsider

an oral acquittal or if the acquittal became final upon utterance.

Because of our ultimate resolution of this case determining that Kramer

cannot be retried, this issue is moot.       Where, however, an issue is of

broad public importance and likely to recur, we may still consider the
issue.

                In determining whether we should review a moot
         action, we consider four factors. These factors include: (1)
         the private or public nature of the issue; (2) the desirability
         of an authoritative adjudication to guide public officials in
         their future conduct; (3) the likelihood of the recurrence of
         the issue; and (4) the likelihood the issue will recur yet evade
         appellate review.

State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002). We have

noted that the last factor is the most important. Id. We find that the

issue of whether an oral grant of acquittal can be immediately revised is

such an issue.
                                     8

      We determine the mere utterance of the words did not preclude

revision of the initial acquittal under the facts of this case. Although we

have not determined by rule or statute what constitutes a final judgment

in a criminal matter, Iowa Rule of Civil Procedure 1.959 provides: “All

judgments and orders must be entered on the record of the court and

clearly specify the relief granted or the order made.”          There is no

comparable provision in the criminal rules.       We have, however, long
allowed the correction of an order before its entry on the docket. State v.

Manley, 63 Iowa 344, 344, 19 N.W. 211, 211 (1884) (“What precedes the

entry of record is the mere announcement of the judge’s mental

conclusion, and is not the court’s action.”).

      This is consistent with the United States Supreme Court’s

discussion in Smith of the ability of a court to correct an erroneous

announcement of acquittal.

      Double-jeopardy principles have never been thought to bar
      the immediate repair of a genuine error in the announcement
      of an acquittal, even one rendered by a jury. And of course
      States can protect themselves still further against the
      “occasional errors” of law that the dissent thinks
      “inevitabl[e]” in the course of trial, by rendering midtrial
      acquittal nonfinal. . . .

             Prosecutors are not without protection against ill-
      considered acquittal rulings.       States can and do craft
      procedural rules that allow trial judges “the maximum
      opportunity to consider with care a pending acquittal
      motion,” including the option of deferring consideration until
      after the verdict.     Moreover, a prosecutor can seek to
      persuade the court to correct its legal error before it rules, or
      at least before the proceedings move forward. Indeed, the
      prosecutor in this case convinced the judge to reconsider her
      acquittal ruling on the basis of legal authority he had
      obtained during a 15-minute recess before closing
      arguments. Had he sought a short continuance at the time
      of the acquittal motion, the matter could have been resolved
      satisfactorily before petitioner went forward with his case.
                                       9

Smith, 543 U.S. at 474–75, 125 S. Ct. at 1138, 160 L. Ed. 2d at 927

(quoting Martin Linen, 430 U.S. at 574, 97 S. Ct. at 1356, 51 L. Ed. 2d at

653) (other citations omitted) (emphasis added).

      Although the court in Smith found double jeopardy to bar the

correction   of   an    erroneous    grant   of   acquittal,   the   facts   are

distinguishable from this case. In Smith, the defendant was charged with

three counts. The defendant sought acquittal on one charge which was
allegedly erroneously granted.      The court found this acquittal to be “a

facially unqualified midtrial dismissal on one count.” Id. at 463, 125 S.

Ct. at 1132, 160 L. Ed. 2d at 920. The defendant then proceeded with

his defense on the remaining charges. At the end of the trial, however,

the judge reversed herself and submitted the dismissed count.                On

appeal, the Court found that to allow reinstatement of the charge would

prejudice Smith who had proceeded in his defense under the assumption

that one of the charges was dismissed.            The Court also noted that

Massachusetts has no rule or case authority on the ability to change

midtrial rulings.      Under those circumstances, reinstatement of the

dismissed count was barred. Id. at 462–63, 125 S. Ct. at 1131–32, 160

L. Ed. 2d at 919–20.
      This case would have presented a much different fact situation had

the court merely revised its ruling before further proceedings.              The

acquittal had not been entered on the docket, and there is Iowa case

authority which would allow the judge to amend his ruling prior to entry

on the docket. The proceedings had not moved forward, and there was

only a slight delay before the reconsideration.          Kramer would have

suffered no prejudice. The United States Supreme Court has noted that

“as a general matter state law may prescribe that a judge’s midtrial

determination of the sufficiency of the State’s proof can be reconsidered.”
                                    10

Id. at 470, 125 S. Ct. at 1136, 160 L. Ed. 2d at 925. To the extent we

have not done so previously, we now hold that a judge may amend an

erroneous directed verdict of acquittal where the ruling is corrected

immediately and prior to any further proceedings.      Therefore, had the

court stood by his corrected ruling and resumed the trial, double

jeopardy would not have been offended.

      The ultimate resolution in this case, however, turns on the fact
that the trial judge reinstated the initial judgment of acquittal after the

defendant claimed that to overrule that judgment of acquittal would

violate double jeopardy.   The trial transcript shows that immediately

following the judge’s pronouncement that the acquittal stood, the

proceedings ended, and the jury was dismissed.          It is this second

acquittal that bars retrial notwithstanding its erroneous underpinning.

As the United States Supreme Court has noted under analogous

circumstances,

      To this extent, we believe the ruling below is properly to be
      characterized as an erroneous evidentiary ruling, which led
      to an acquittal for insufficient evidence. That judgment of
      acquittal, however erroneous, bars further prosecution on
      any aspect of the count and hence bars appellate review of
      the trial court’s error.

Sanabria v. United States, 437 U.S. 54, 68–69, 98 S. Ct. 2170, 2181, 57

L. Ed. 2d 43, 56–57 (1978). Similarly, in Taft, we stated:

      The United States Supreme Court has long held that a
      verdict of acquittal cannot be reviewed for any reason
      without violating the Double Jeopardy Clause. And, this
      perhaps has been the most fundamental rule in the history
      of double jeopardy jurisprudence. The rule is so jealously
      guarded, that a review is not permitted even if “the acquittal
      was based upon an egregiously erroneous foundation.”
Taft, 506 N.W.2d at 760 (quoting Fong Foo, 369 U.S. at 143, 82 S. Ct. at

672, 7 L. Ed. 2d at 631) (other citations omitted). Thus, where the trial
                                           11

judge noted the acquittal on the docket and dismissed the jury, because

of an erroneous belief that he could not revise his initial ruling without

offending double jeopardy, jeopardy terminated, and Kramer cannot be

retried.1
       V. Disposition.

       We hold that the trial judge erred in declaring that he could not

amend his initial grant of acquittal.           We find, however, that when the

trial judge dismissed the case a second time, entered the dismissal on

the docket, and dismissed the jury, jeopardy terminated. Therefore, the

Double Jeopardy Clause of the United States Constitution bars retrial of

this matter.

       AFFIRMED.




       1We  do not decide today what form the acquittal must take before it is effective
for double jeopardy purposes. In Taft, we noted that a court could not recall a jury
without violating double jeopardy. 506 N.W.2d at 760. Some state courts have held
that a court-directed judgment of acquittal is not effective until it is signed and entered
in the docket. See Harden v. State, 287 S.E.2d 329, 331 (Ga. Ct. App. 1981); see also
Watson v. State, 410 So.2d 207, 209 (Fla. Dist. Ct. App. 1982) (not final until the
motion hearing is concluded); State v. Collins, 771 P.2d 350, 353 (Wash. 1989) (not final
until a form order is issued).
