RENDERED: MARCH 17, 2016 

TO BE PUBLISHED 

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2015-SC-000437-MR 

MICHAEL A. DUNN APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. 2014-CA-001966-OA 

MONTGOMERY CIRCUIT COURT NO. 08-CR-00226 

HONORABLE BETH LEWIS MAZE 

(JUDGE, MONTGOMERY CIRCUIT 

COURT) APPELLEE 

AND 

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST 

OPINION OF THE COURT BY JUSTICE NOBLE 

REVERSING AND REMANDING 

The Appellant, Michael A. Dunn, was previously prosecuted for seven 

identically worded counts of first-degree sodomy. He was acquitted on two of 

those counts, and convicted of the other five. His convictions were later 

vacated, and a new trial was ordered. On remand to the trial court, Dunn 

claimed his re-prosecution was barred by double jeopardy. The trial court 

denied his claim. The Court of Appeals declined to grant a writ of prohibition 

barring the impending retrial. A new trial on the vacated counts, however, 

raises a substantial risk that Dunn will be tried for crimes for which he has 
already been acquitted, thereby violating his double-jeopardy rights. For that 

reason, the order of the Court of Appeals denying Dunn's petition for a writ of 

prohibition is reversed. 

I. Background 

In 2008, Dunn was charged with seven counts of first-degree sodomy 

with a minor. All seven counts of the indictment read identically. At trial, the 

minor described five instances of anal sodomy in detail, including the 

approximate time and circumstances surrounding the events. The minor also 

testified that Dunn forced him to perform oral sex twice, though there appears 

to have been less detail about those events. Though there was ample testimony 

that would have allowed the jury to distinguish between the various incidents, 

at least as to the anal sodomies, the jury instructions on all seven counts were 

worded identically. The jury found Dunn guilty of five counts (counts 1 to 4, 

and count 7) and not guilty of two counts (counts 5 and 6). He was sentenced 

to fifty years in prison. 

Dunn appealed to this Court. See Dunn v. Commonwealth, 360 S.W.3d 

751 (Ky. 2012). He raised several issues but did not complain that the jury 

instructions failed to factually differentiate between the counts, despite clear 

law holding such failure to be reversible error. See Miller v. Commonwealth, 283 

S.W.3d 690, 695 (Ky. 2009) ("[I]t is now settled that a trial court errs in a case 

involving multiple charges if its instructions to the jury fail to factually 

differentiate between the separate offenses according to the evidence."). The 

closest he came to this issue was in complaining that the trial court erred in 

failing to order a bill of particulars, and that he was misled about which 

2 
incidents were included in the indictment and was thereby deprived of proper 

notice of the charges. Dunn, 360 S.W.3d at 760. This Court affirmed his 

convictions. 

Nine months after this Court affirmed, Dunn filed a pro se motion under 

Criminal Rule 11.42 collaterally attacking his conviction. He raised numerous 

issues, including that his trial counsel had been ineffective by failing to object 

to the identically worded jury instructions. The trial court denied the motion. 

The Court of Appeals vacated Dunn's convictions and remanded for a 

new trial. The court's opinion in that case was very short, as the 

Commonwealth conceded both that Dunn's counsel had been ineffective, given 

that instructions like those used in his case are palpable error under Miller, 

and that Dunn was entitled to a new trial. See Dunn v. Commonwealth, 2013-

CA-000222-MR, 2014 WL 1155474, at *1 (Ky. App. Mar. 21, 2014) 

(unpublished opinion). 

On remand, Dunn moved to dismiss the indictment, claiming that his 

right to a speedy trial was being violated and that retrial would violate the bar 

on double jeopardy. The circuit court denied his motions. As to the doublejeopardy claim, the court concluded that retrial was not barred because his 

convictions had been vacated for instructional errors and remanded for a new 

trial, with no appellate finding of insufficiency of the evidence. Interestingly, the 

court ordered retrial on all seven counts, even the two of which Dunn had been 

acquitted by the jury. Dunn moved the court to reconsider its order, but the 

motion was denied. 

3 
Dunn then filed a petition for a writ of prohibition in the Court of Appeals 

seeking to bar his retrial. He again claimed that his right to a speedy trial and 

the prohibition on double jeopardy would be violated by retrial. The Court of 

Appeals granted the writ as to the two counts for which Dunn had been 

acquitted, but denied the writ otherwise. As to the other five counts, 

convictions for which had been vacated, the court concluded Dunn had not 

shown that he lacked an adequate remedy by appeal, as required for the 

remedy of a writ to even be available. (The court followed this conclusion by 

stating: "Nothing prevents Dunn from taking an appeal from the circuit court's 

order denying any motions to suppress evidence should he be convicted of any 

offenses on retrial." This statement is curious because Dunn has not raised, at 

this time, any complaint that evidence should have been suppressed.) The 

court did not specifically address how Dunn had an adequate remedy by 

appeal for his speedy-trial and double-jeopardy claims. 

Dunn now appeals to this Court as a matter of right. See CR 76.36(7)(a) 

("An appeal may be taken to the Supreme Court as a matter of right from a 

judgment or final order in any proceeding originating in the Court of Appeals."); 

Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a 

matter of right at least one appeal to another court ...."). He has not asked this 

Court for intermediate relief under Civil Rule 76.36(4), though it appears that 

the circuit court has continued the underlying case while this appeal is 

pending. The Commonwealth did not cross-appeal that portion of the Court of 

Appeals' order barring retrial of the two counts of which Dunn was acquitted, 

and has indicated its assent to that part of the opinion. 

4 
II. Analysis 

Although Dunn has raised two issues, that his right to a speedy trial has 

been violated and that his right against double jeopardy will be violated by 

retrial, we address only the latter because it is dispositive of his case. Dunn's 

double jeopardy argument is that because he was acquitted on two of the seven 

identically worded counts, he may not be retried on the remaining five counts. 

His claim is, in essence, that because the counts were identically worded, we 

cannot know whether the counts to be retried are ones that have already 

resulted in an acquittal. Kentucky has not addressed this issue, though it has 

hinted that identically worded "carbon copy" jury instructions contain a 

double-jeopardy problem. See Miller v. Commonwealth, 283 S.W.3d 690, 695 

(Ky. 2009) (noting that the issue with such instructions may be "viewed as one 

of ... double jeopardy," among others (quoting Miller v. Commonwealth, 77 

S.W.3d 566, 576 (Ky. 2002))). Other jurisdictions, however, have consistently 

concluded that under such circumstances, "nothing would preclude a new jury 

from convicting [the defendant] for alleged incidents for which he already has 

been acquitted," and that would "constitute double jeopardy." State v. Heaven, 

110 P.3d 835, 838 (Wash. 2005). 

But this is not a typical appeal where we can jump immediately to the 

merits of an appellant's claims. It is, instead, the appeal of a denial of a petition 

for a writ of prohibition.. Generally speaking, cases in which a writ of 

prohibition or mandamus is sought proceed in two steps. Collins v. Braden, 

384 S.W.3d 154, 158 (Ky. 2012). First, the court must look at whether such an 

extraordinary remedy is even available, before deciding the merits of the 

5 
claimed legal error. Id. Second, if the court finds that the remedy is available, it 

may then look at the merits of the claimed error. Id. And if the trial court has 

erred or is about to err, the court may issue the writ. Id. Thus, we must first 

examine whether the remedy is even available. 

A. Remedy by way of a writ is available to vindicate a claimed violation 

of the Double Jeopardy Clause's bar on successive prosecutions. 

In deciding whether the remedy is available, this Court has divided writ 

cases into "two classes ..., one addressing claims that the lower court is 

proceeding without subject matter jurisdiction and one addressing claims of 

mere legal error." Id. at 158. Dunn has not made a claim under the first class, 

and thus we address only the second. 

Under the second class, a writ may be granted—that is, the remedy is 

available—if "there exists no adequate remedy by appeal or otherwise and great 

injustice and irreparable injury will result if the petition is not granted." 

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Of the two prerequisites for 

this class of writ, the first is mandatory, and thus Dunn is required to prove 

that he has no adequate remedy by appeal. Marcum v. Scorsone, 457 S.W.3d 

710, 716 (Ky. 2015). 

The Court of Appeals held that Dunn had an adequate remedy by appeal, 

concluding that any double-jeopardy claim could be addressed by an appeal if 

he were again convicted. In so concluding, the Court of Appeals acted in 

accordance with our cases stating that double-jeopardy questions generally 

may be remedied by appeal, and thus whether to examine a double-jeopardy 
issue in a writ action is wholly discretionary. See, e.g., St. Clair v. Castlen, 381 

S.W.3d 306, 309 (Ky. 2012); St. Clair v. Roark, 10 S.W.3d 482, 485 (Ky. 1999). 

This blanket approach to double jeopardy, however, ignores that doublejeopardy questions arise in two distinct categories: those where a defendant is 

prosecuted for multiple crimes arising from the same conduct, and those where 

the defendant is prosecuted a second time (after either a conviction or an 

acquittal). These categories reflect the fact that the Double Jeopardy Clause 

both protects "against ... the actual imposition of two punishments for the 

same offense" and "protects a criminal defendant from being twice put in 

jeopardy for such punishment." Witte v. United States, 515 U.S. 389, 396 

(1995); see also United States v. Central Liquor Co., 628 F.2d 1264, 1266 (10th 

Cir. 1980) ("The right not to be tried more than once and the right not to 

receive multiple convictions and punishments for the same offense are both 

protected by the double jeopardy clause, but they are conceptually distinct 

rights."). This latter protection is perhaps best described as protection against 

successive prosecutions. 

Our adequate-remedy cases apply in the context of a case in which a 

defendant is being prosecuted in a single proceeding for multiple crimes arising 

from one course of conduct and is thus subject to multiple punishments. The 

double-jeopardy question in such a case is resolved under Blockburger v. 

United States, 284 U.S. 299, 304 (1932). An appellate court should not 

intercede while such a case is ongoing because the doubling of jeopardy does 

not occur until the defendant is doubly punished. And any error in that context 

can be corrected on appeal. See Abney v. United States, 431 U.S. 651, 660 

7 
(1977) (noting that the protection against double punishment "can be fully 

vindicated on an appeal following final judgment"). 

Those cases, however, do not apply where the defendant complains of a 

second (or third or fourth) prosecution. Such cases implicate the Double 

Jeopardy Clause's second protection, namely, protection against "the risk that 

an accused for a second time will be convicted of the 'same offense' for which 

he was initially tried." Id. at 661 (quoting Price v. Georgia, 398 U.S. 323, 326 

(1970)). This protection is "a guarantee against being twice put to trial for the 

same offense." Id.; see also Blackledge v. Perry, 417 U.S. 21, 31 (1974) (noting 

that "the Double Jeopardy Clause is distinctive ... [because] 'its practical result 

is to prevent a trial from taking place at all"' (quoting Robinson v. Neil, 409 U.S. 

505, 509 (1973)). In other words, it is the second trial that is forbidden, 

assuming that the second trial would, in fact, result in double jeopardy. 

Indeed, it is for this reason that the federal courts allow an immediate appeal of 

a district court's order rejecting a successive-prosecution double-jeopardy 

claim and ordering a defendant to be tried a second time. Abney, 431 U.S. at 

661. This is necessary because "these aspects of the guarantee's protections 

would be lost if the accused were forced to 'run the gauntlet' a second time 

before an appeal could be taken." Id. Thus, a post-trial appeal is inherently 

inadequate to protect this aspect of the double-jeopardy protection because 

"even if the accused is acquitted, or, if convicted, has his conviction ultimately 

reversed on double jeopardy grounds, he has still been forced to endure a trial 

that the Double Jeopardy Clause was designed to prohibit." Id. 

8 
Some of our cases have acknowledged this limit and have suggested that 

a successive-prosecution double-jeopardy claim satisfies the inadequateremedy requirement. For example, the seminal writ case Hoskins v. Maricle 

notes: "we have found the right of appeal inadequate when the petition of a 

criminal defendant seeks to prohibit a proceeding allegedly barred by the 

constitutional proscription against double jeopardy." 150 S.W.3d at 19; see 

also Radford v. Lovelace, 212 S.W.3d 72, 78 (Ky. 2006), overruled on other 

grounds by Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009) (finding no 

adequate remedy by appeal where defendant claimed second trial was barred 

by double jeopardy). 1 

At the very least, then, our cases have treated this question 

inconsistently, often without even acknowledging the other line of cases. Today 

we resolve this conflict. Although the remedy of a writ remains discretionary 

with the reviewing court, there is not an adequate remedy by appeal where a 

defendant contends that double jeopardy would bar a second trial following 

either an acquittal or conviction. This, however, is not to say that all such 

claims will be meritorious; rather, it is to say only that the requirement of no 

adequate remedy by appeal is shown. The point is that a reviewing court must 

exercise its discretion not willfully, but soundly, when there is no adequate 

remedy by appeal. 

1Ironically, Hoskins cites St. Clair v. Roark for this point, despite the fact that 

that case specifically concluded that a court could decline to review a writ petition "on 

grounds that there is an adequate remedy by appeal." St. Clair v. Roark, 10 S.W.3d 

482, 485 (Ky. 1999). 

9 
The second writ prerequisite, of great injustice and irreparable injury, is 

more readily disposed of. A meritorious claim that double jeopardy bars retrial 

satisfies the requirement of great injustice and irreparable injury. See Radford, 

212 S.W.3d at 79 (noting that irreparable injury turned on merits of the 

double-jeopardy claim). This seems obvious given that the constitutional 

protection against double jeopardy is one of our most basic freedoms against 

governmental overreach and is a fundamental aspect of our justice system. 

And the unique nature of the protection—against the trial itself—proves that 

any violation of the right—by having a second trial—is irreparable. 

That said, even if the purported violation would not result in irreparable 

harm, a writ would still be available. The irreparable-harm requirement "may 

be put aside in 'certain special cases.'" Grange Mut. Ins. Co. v. Trude, 151 

S.W.3d 803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S.W.2d 799, 801 

(Ky. 1961)). That limited sub-class of cases consists of those in which "a 

substantial miscarriage of justice will result if the lower court is proceeding 

erroneously, and correction of the error is necessary and appropriate in the 

interest of orderly judicial administration." Id. (quoting Bender, 343 S.W.3d at 

801). A second trial in violation of the bar on double jeopardy "would constitute 

a miscarriage of justice and would disrupt the orderly administration of 

justice." Hoskins, 150 S.W.3d at 20. And thus, successive-prosecution claims 

also meet the special-cases exception. 

10 
B. Dunn did not waive his double jeopardy claim by failing to raise it in 

state collateral attack under Criminal Rule 11.42, nor by seeking to 

have his convictions vacated. 

Having concluded that the remedy of a writ is available, we would 

normally turn next to the merits of the claim. But the Commonwealth has also 

raised the claim that Dunn is barred from pursuing his double-jeopardy claim 

because he failed to raise it in his 11.42 action, or, barring that, because he 

successfully attacked his convictions. 

The Commonwealth's claim is based on the holding in Johnson v. 

Commonwealth, 450 S.W.3d 707 (Ky. 2014). In that case, we held that a trial 

court is bound by an appellate court's mandate on remand and has no power 

to act in a manner inconsistent with it. Id. at 710-11. We also held that the 

process for reviewing a criminal judgment, both on direct appeal and in 

collateral attacks, is a complete system, and that "[a]t each stage in this 

structure, the defendant is required to raise all issues then amenable to 

review." Id. at 712. "Any issue that could have been raised but was not is 

treated as waived." Id. 

The Commonwealth now suggests that the trial court and Dunn were 

bound by the Court of Appeals' remand for a new trial. It argues explicitly that 

the double-jeopardy question is one that should have been raised previously 

and is therefore waived. 

After substantial research, however, it appears to this Court that the 

Commonwealth's argument is built on a pair of incorrect premises. 

First, the trial court in this case would not be violating the appellate 

mandate, by considering (and granting) Dunn's motion to dismiss if, in fact, he 

11 
has shown a double-jeopardy violation. Although the Court of Appeals 

remanded to the circuit court for a new trial, that does not literally require that 

Dunn be retried. Obviously, the defendant might enter a plea. Or the 

Commonwealth could choose to dismiss because evidence had been lost. In 

fact, any number of legitimate things might prevent a retrial. All a remand for 

a new trial does is reset the process, giving the Commonwealth the right to 

proceed or the defendant the right to plead—or not. This reset is subject to any 

directions from the appellate court: "upon return of a case from this court for a 

new trial the situation of the parties and the condition of the case is the same 

as if the trial court in place of this court had granted a new trial, subject, 

however, to the directions given by this court concerning the manner in which 

the case shall be retried." Halteman v. Russell, 185 S.W.2d 399, 402 (Ky. 1945). 

For the Commonwealth to prevail on this issue, this Court would have to 

impose a rule of such rigidity as to defeat the purpose of a retrial in the first 

instance: to allow for a fundamentally fair trial. Such an extreme reading of 

Johnson borders on the ridiculous, and cannot justify the trial court requiring 

retrial on all seven charges, even though Appellant had been acquitted on two 

of the seven in the first trial. 

It is also important to note that the follow-the-mandate rule laid out in 

Johnson applied to an affirmed judgment. 450 S.W.3d at 710; see also 

Williamson v. Commonwealth, 767 S.W.2d 323, 325 (Ky. 1989) (applying rule to 

portion of judgment affirmed on appeal). The rule is driven by the interest in 

finality of judgments, and thus it is addressed to situations "when an issue is 

finally determined by an appellate court." Johnson, 450 S.W.3d at 711 (quoting 

12 
Williamson, 767 S.W.2d at 325) (emphasis added). Simple logic dictates that an 

appellate court order constrains a trial court from "redoing" that which has 

already been affirmed and is the law of the case. 

In vacating Dunn's conviction and remanding for a new trial, the Court of 

Appeals was, in fact, not deciding anything finally, at least not with respect to 

his guilt or, if necessary, appropriate sentence. If anything, the Court of 

Appeals delayed finality by undoing the existing judgment and allowing further 

proceedings. 

But the Commonwealth also claims that the double jeopardy issue could 

have been raised in the previous appeal and cannot be raised now under the 

rule that issues that could have been raised but were not treated as waived. 

This waiver rule is an extension of the law-of-the-case doctrine, and it works 

"to bar the trial court from considering issues on remand that could have been 

but were not raised in the appeal." Johnson, 450 S.W.3d at 712. But this rule 

is also concerned "with society's and the court's interest in the ultimate finality 

of judgments." Id. (quoting Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 

2010)). Again, there was no final judgment being affirmed that could be 

affected by raising new issues on remand. The finality interest served by the 

Johnson waiver rule simply was not in play because the Court of Appeals 

reversed and remanded this case for a new trial. 

Indeed, what was important in Johnson was that this Court's prior 

opinion "required no further proceedings (such as a retrial, a hearing, or a 

resentencing at which probation was to be considered) that might have allowed 

a new issue to be injected into this case." Id. at 714 (emphasis added). Here, 

13 
the trial court was told to hold a new trial. That is precisely the type of further 

proceeding that Johnson contemplated would allow the injection of additional 

issues. And there were no limits in the Court of Appeals' remand, other than 

the implicit requirement that any retrial use appropriate jury instructions, and 

the double-jeopardy question had not previously been decided. 

This brings us to the Commonwealth's second incorrect premise: the 

assumption that the double-jeopardy issue could have been raised and decided 

in the Criminal Rule 11.42 action, and thus was waived. The simple fact is that 

Dunn could not have asked either the trial court or the Court of Appeals to 

dismiss the charges against him because any double-jeopardy claim based on 

the threat of a second trial was not yet ripe. 

Although a defendant does not have to wait until a second conviction 

before he may raise this type of double-jeopardy challenge, since it is the 

second attempt to convict that is forbidden, see Witte v. United States, 515 U.S. 

389, 397 (1995) (holding that double-jeopardy claim was ripe when government 

undertakes second prosecution), 2his claim is not ripe until the government 

actually initiates the second prosecution. 3 

2Indeed, this is why, as explained above, the federal courts allow an 

interlocutory appeal of an adverse double jeopardy decision of this type. 

3 Some courts have held that a double jeopardy claim is not ripe until the 

defendant receives a second punishment. See, e.g., United States v. McKinley, 38 F.3d 

428, 430 (9th Cir. 1994) (concluding "that because the double jeopardy claim focuses 

on double punishment it is not ripe for review" where defendant had not yet been 

subjected to a second punishment); United States v. Koonce, 885 F.2d 720, 722 (10th 

Cir. 1989) (double jeopardymotion not ripe for review "[u]nless and until defendant 

receives some punishment ... that is arguably multiple"). Those cases, however, are 

based on the Double Jeopardy Clause's protection against multiple punishments, not 

its protection against subsequent prosecution. Again, the "right not to be tried more 

than once and the right not to receive multiple convictions and punishments for the 

same offense are both protected by the double jeopardy clause, but they are 

14 
Until the government indicates its intent to try a defendant a second 

time, any "Double Jeopardy claim is pure speculation about what might occur 

in the future." United States v. Suarez, 617 Fed. Appx. 537, 545 (6th Cir. 2015). 

This appears to be the almost universal rule across the United States. 4For 

conceptually distinct rights." United States v. Central Liquor Co., 628 F.2d 1264, 1266 

(10th Cir. 1980). When the double jeopardy claim becomes ripe depends on the nature 

of the protection claimed. Thus, a defendant may pursue—by interlocutory appeal, no 

less—a claim that he is being subjected to a second trial improperly, see Abney v. 

United States, 431 U.S. 651, 661 (1977), but would have to wait until convicted of two 

crimes that allegedly arise from the same act, whether in a single trial or successive 

trials, before he can invoke the protection against multiple punishment. 

4The examples are too numerous to include in the text above. They include: 

United States v. Qasim, 294 Fed. Appx. 509, 514 n.6 (11th Cir. 2008) ("Whether the 

government would commence a second prosecution of Qasim for murder is 

speculation, and Qasim's double jeopardy claim is not ripe."); United States v. Corona, 

34 F.3d 876, 882 n.5 (9th Cir. 1994) ("We do not address the question of whether the 

Double Jeopardy Clause now bars the government from trying Corona in California on 

the substantive counts. This issue would only become ripe if the government did 

attempt a second prosecution."); Nelson v. State, 72 So. 3d 1038, 1044-45 (Miss. 2011) 

(concluding that double-jeopardy claim based on fact that defendant "may be 

prosecuted in the future ... is not ripe for determination"); Morris v. State, 795 A.2d 

653, 661 (Del. 2002) ("[A] properly presented claim that retrial is barred by double 

jeopardy cannot be raised unless and until the State elects to reprosecute. 

Accordingly, the issue is not ripe and we decline to pass upon the question. Whether 

or not the State will seek a retrial and, if so, how the double jeopardy issue will be 

presented to the Superior Court and how it will rule are all, of course, unknown future 

events. As interesting as this issue is, we may never have to decide it. If we were to 

speak to the issue in this Opinion we would be expressing an advisory opinion, and 

that is not our proper function." (footnotes omitted)); State v. McKenna, 512 A.2d 113, 

115 (R.I. 1986) ("Unless or until a second prosecution is commenced, defendant's 

double-jeopardy challenge is speculative and not ripe for consideration by this court."); 

Bailey v. State, 688 P.2d 320, 322 (Nev. 1984) ("We conclude, however, that unless 

and until the state refiles the attempted murder charge, the double jeopardy claim is 

premature; accordingly, we decline to address it at this time. On remand, if the state 

refiles the murder charge, appellant may raise his double jeopardy claim in district 

court by the appropriate motion."); State v. Bazemore, 107 Conn. App. 441, 945 A.2d 

987 (App. Ct. Conn. 2008) (concluding "that because a second prosecution has not 

been commenced ..., the issue is not yet ripe for adjudication"); York v. State, 751 So. 

2d 1194, 1199-200 (Miss. Ct. App. 1999) (concluding that double jeopardy "is not ripe 

for review" and that "the risk of double jeopardy is speculative" until government tries 

to prosecute); State v. Rasch, 935 P.2d 887, 890-91 (Ariz. Ct. App. 1996) 

("Furthermore, we observe in passing that a double jeopardy issue is not 'ripe' until 

the defendant is prosecuted following a mistrial. The issue is normally presented when 

defendant moves to dismiss the second prosecution on double jeopardy grounds, 

claiming that judicial or prosecutorial overreaching intentionally forced a mistrial of 

15 
example, the Eleventh Circuit has held that where the district court directed a 

verdict of acquittal while an appeal of a suppression question was pending, a 

double-jeopardy claim was not yet ripe in the appeal. United States v. TovarRico, 61 F.3d 1529, 1532 (11th Cir. 1995). The court held instead: "If the 

government decides to proceed with another trial of [the defendant], she may 

raise the double jeopardy issue which would then be ripe for decision. We 

cannot speculate what further proceedings, if any, will take place." Id. 

Despite this authority, the Commonwealth cites Commonwealth v. 

Davidson, 277 S.W.3d 232, 235 (Ky. 2009), in which we affirmed the Court of 

Appeals' decision to bar retrial on double-jeopardy grounds, before there was 

ever a threat of retrial, where it found the evidence insufficient to support the 

conviction. But this case is at best factual precedent for the practice because 

the ripeness of the double-jeopardy question does not appear to have been 

raised in the case, either before the Court of Appeals on rehearing or before 

this Court on discretionary review, which was sought by the Commonwealth. 

the original prosecution." (citations omitted)); Burks v. State, 876 S.W.2d 877, 889 

(Tex. Crim. App. 1994) ("In regards to any potential claim of jeopardy which appellant 

might have to assert in a future prosecution, the proper time to argue this issue is 

after he has been charged or indicted for that unnamed future offense. As of now, that 

issue is far from ripe."); Coles v. Smith, 1:10 CV 525, 2013 WL 474706, at *8 (N.D. 

Ohio Feb. 7, 2013), affd, 577 Fed. Appx. 502 (6th Cir. 2014) ("[D]ouble jeopardy 

issues arise only after the state files a second indictment."); Willing v. Warren, CIV. 06-

11650, 2006 WL 1107070, at *1 (E.D. Mich. Apr. 26, 2006) ("Double Jeopardy became 

ripe at the first notice of the State's intent to retry Mr. Willing in a published notice, 

June 30, 2005, and was furthered by its second notice of intent through an ex parte 

Motion for Writ of Habeas Corpus, filed July 22, 2005."); Johnston v. Porter, CV-05-

078-CI, 2005 WL 2708421, at *4 (E.D. Wash. Sept. 29, 2005) ("To be colorable, a 

double jeopardy claim must have some possible validity. This issue would become ripe 

only if and when the government attempts a second prosecution" (citation and 

quotation marks omitted)). 

16 
Davidson simply has nothing to say about the ripeness of a double-jeopardy 

claim. 

And this Court has declined elsewhere to address a double jeopardy 

question as not yet ripe where a second prosecution has not yet been 

commenced. See Applegate v. Commonwealth, 299 S.W.3d 266, 271 (Ky. 2009) 

(holding that a double-jeopardy claim related to lack of specificity in jury 

instructions "is not yet ripe" because defendant had "not been again arrested or 

indicted for any crimes for which he has already been convicted"). Until the 

Commonwealth decides to proceed with the subsequent prosecution, any 

"concerns about double jeopardy are speculative and not justiciable." Id. 

Of course, Dunn did request a new trial in his Criminal Rule 11.42 

motion. It thus could be argued that he should have raised his double jeopardy 

claim then because a second trial was inevitable if he prevailed (which he did). 

This is precisely the claim that was presented to the Pennsylvania Superior 

Court in Commonwealth v. Moose, 623 A.2d 831 (Pa. Super. Ct. 1993), as part 

of an argument that the defendant waived any double-jeopardy claim by asking 

for a new trial without raising the double jeopardy question in the same 

appeal. 

There, the government suggested, as does the Commonwealth here, that 

the defendant "received what he requested on appeal, i.e., a new trial, and 

should not now be permitted to seek additional relief in the form of dismissal of 

the charges." Id. at 835 n.2. But as we pointed out above, that assumes 

entirely too much. And, as the Pennsylvania court noted, lilt is not axiomatic 

from that juncture ... that the Commonwealth will undertake re-prosecution." 

17 
Id. Instead, it is only "[o]nce that decision has been made by the 

Commonwealth ... [that] the question of being placed twice in jeopardy is ripe 

for review." Id. 

Indeed, it is axiomatic that a defendant is not at risk a second time—that 

is, subject to double jeopardy—until he in fact is put at risk. That can only 

occur when and if a second prosecution occurs. 

And this case is a good example of where, at least at the time of Dunn's 

request for a new trial, the Commonwealth might have chosen not to proceed to 

trial a second time if Dunn's claim was successful. Dunn was acquitted of two 

of the charges against him, which suggests the Commonwealth's proof was not 

compelling across the board. It was entirely possible that the Commonwealth 

may not have wanted a second trial, whether because of concerns about its 

own resources being wasted or about further trauma to the complaining 

witness. Or, more likely, the Commonwealth might have anticipated seeking a 

plea agreement. Either way, a second trial might not have occurred. 

We agree with the vast majority of courts to have addressed this 

question. Where a defendant's conviction has been vacated and the matter is 

remanded for a new trial, any claim of a violation of the double-jeopardy right 

against successive prosecution is not ripe until the Commonwealth indicates 

its intent to re-prosecute. Obviously that decision was eventually made in this 

case, but it did not (and could not) occur until the remand took place. We agree 

with Pennsylvania that there is no guarantee that a second prosecution will 

occur, and that any claim of a double-jeopardy violation before the 

Commonwealth indicates its intent would be speculative. 

18 
Finally, the Commonwealth suggests that Dunn is barred from raising 

his double-jeopardy claim simply because he procured the vacation of his 

convictions by pursuing his 11.42 remedies. If this were a case about an 

evidentiary error or other trial error, a reversal would not bar reprosecution on 

double jeopardy grounds because "[i]t is elementary that one may not complain 

of former jeopardy when he procured the setting aside of the earlier judgment." 

Ferguson v. Commonwealth, 401 S.W.2d 225, 228 (Ky. 1965); see also Lockhart 

v. Nelson, 488 U.S. 33, 38 (1.988). That limit, however, does not apply where 

the defendant has previously been acquitted of the charges that he now 

challenges. A jury acquittal results in the greatest protection against 

subsequent prosecution. See, e.g., Ball v. United States, 163 U.S. 662, 671 

(1896) ("The verdict of acquittal was final, and could not be reviewed, on error 

or otherwise, without putting him twice in jeopardy, and thereby violating the 

constitution. However it may be in England, in this country a verdict of 

acquittal, although not followed by any judgment, is a bar to a subsequent 

prosecution for the same offense."). Indeed, "we necessarily afford absolute 

finality to a jury's verdict of acquittal—no matter how erroneous its decision." 

Burks, 437 U.S. at 1. 

And, as the clincher, it should be noted that although Dunn obtained the 

vacation of his convictions on grounds of ineffective assistance of counsel, he 

has not waived any claim of double jeopardy with respect to the remaining 

counts given the unusual circumstances of his case. He claims, quite correctly, 

that he was acquitted of two counts at his previous trial and may never be retried for the offenses to which those counts correspond. 

19 
He also claims that because he (and, indeed, no one) can know what 

offenses those acquittals relate to, he cannot be retried on any of the counts. 

He is, in essence, pleading that his former acquittals bar a subsequent 

prosecution. If he is correct on that claim, then his present double jeopardy 

claim cannot have been waived by his success in obtaining the vacation of his 

other convictions. He is not claiming that his re-prosecution is barred by the 

fact that he was previously prosecuted for those offenses; he is, instead, 

claiming that re-prosecution is barred because he was functionally acquitted of 

the previous offenses. 

He is correct, then, that he did not waive his present double-jeopardy 

claim by successfully pursuing the vacation of his convictions. His doublejeopardy claim is not based on the fact of the previous convictions. It is instead 

based on the prior acquittals. A jury's verdict of acquittal, if indeed there is 

one, is absolute. If Dunn is correct that those acquittals apply to the other 

identically worded counts for which he was prosecuted, then he is correct that 

he has not waived any successive-prosecution claim as to those counts. 

C. Double jeopardy bars re -prosecution of Dunn. 

Having concluded both that the remedy of a writ is available and that 

Dunn has not waived his successive-prosecution double-jeopardy claim, we 

turn now to the merits of that claim. As noted above, we have not previously 

addressed this issue, though we have hinted that the problem with identically 

worded "carbon copy" jury instructions may be "viewed as one of ... double 

jeopardy," among other concerns. Miller, 283 S.W.3d at 695 (quoting Miller, 77 

S.W.3d at 576). Those cases have actually turned on the other concerns, such 

20 
as the effect of such instructions on the defendant's rights to a unanimous 

verdict and to due process. See id. 694-95 (discussing unanimous verdict and 

due-process problems). 

The core problem when identical, generic counts are used is that "we 

cannot be sure what factual incidents were presented and decided by this 

jury." Valentine v. Konteh, 395 F.3d 626, 635 (6th Cir. 2005). The indictment in 

such a case is considered flawed for this reason. If the error in the indictment 

is carried on in the instructions and resulting jury verdict, a due-process 

violation occurs. The due-process problem is two-fold: the generic indictment 

failed to give adequate notice of the charges, id. at 631-32, and the indictment, 

along with the instructions and verdict, fails to provide adequate protection 

against double jeopardy in the future, id. at 634-35. This second aspect is not a 

double-jeopardy error per se; it is still a due-process violation. 

At the time of the first trial, any double-jeopardy problem is only a 

potential one. As discussed above, such double-jeopardy issues are not ripe 

until a second prosecution is pursued. And that problem, while obviously 

related to due-process concerns, is distinct from any due-process problem. The 

due-process error is a present problem; any double-jeopardy problem is a 

future one. Thus, the instructions and jury verdicts have an existing defect 

affecting the defendant's rights to due process, but they also have the latent 

defect related to the defendant's double-jeopardy rights that can manifest only 

if there is a reversal of the convictions and a retrial in the future. 

But in this case, we have arrived at that future. The Commonwealth 

previously employed a generic, identically worded multiple-count indictment. 

21 
The trial court then used generic, identically worded jury instructions on those 

counts. The jury returned a mixed verdict on those counts. And the Court of 

Appeals reversed the convictions on error conceded by the Commonwealth. The 

Commonwealth now seeks to prosecute Dunn a second time. 

Dunn claims that his prior acquittals bar his retrial. This Court agrees. 

The latent defect has now become manifest; what had been a potential doublejeopardy problem has now become an existing double-jeopardy problem. 

As Justice Cunningham has noted of identically worded jury 

instructions, "We do not know exactly which criminal acts the jury 

unanimously found the defendant guilty of." Miller, 283 S.W.3d at 705 

(Cunningham, J., concurring). But that also means that we do not know 

exactly which criminal acts the jury unanimously acquitted the defendant of. 

Unlike the convictions, which have been set aside, the acquittals 

continue to have full effect and are not undone by any appeal. Indeed, this is 

why the Court of Appeals granted the writ of prohibition to bar the circuit court 

from retrying Dunn on the two counts of which he was acquitted. But what 

crimes were covered by those counts? 

Almost every other jurisdiction to have considered this question has 

concluded that upon retrial, "nothing would preclude a new jury from 

convicting [the defendant] for alleged incidents for which he already has been 

acquitted," and that such an outcome would "constitute double jeopardy." 

State v. Heaven, 110 P.3d 835, 838 (Wash. 2005); accord State v. Salter, 42 

A.3d 196, 207 (N.J. Super. Ct. App. Div. 2012) ("[W]e could not say with any 

confidence that defendant would not endure a second prosecution for the same 

22 
offense after acquittal, something categorically prohibited by our double 

jeopardy jurisprudence." (internal quotation marks omitted)); Goforth v. State, 

70 So.3d 174, 190 (Miss. 2011) (holding that defendant who was acquitted on 

three of five identically worded counts "cannot be prosecuted again on these 

charges or for any same crimes that occurred during the time period set forth 

in her indictment" when the convictions were reversed for other grounds); 

Brown v. Superior Court, 114 Cal. Rptr. 3d 804, 820 (Cal. Ct. App 2010) 

(concluding that "the prosecutor has not shown, and cannot show, that none of 

the acquittals pertained to the ... incident [being prosecuted]" and that 

"[d]ouble jeopardy precludes the retrial of [the] count"); Commonwealth v. 

Hrycenko, 630 N.E.2d 258, 263 (Mass. 1994) ("The defendant could not have 

been retried on the two indictments on which the convictions were reversed on 

appeal without being subjected to the risk of conviction on a rape charge on 

which he had been previously acquitted."); State v. Ogle, 2007-Ohio-5066, 2007 

WL 2793355, 1123 (Oh. Ct. App. Sept. 27, 2007) (unpublished opinion) (finding 

double jeopardy barred retrial upon reversal where defendant was acquitted on 

some counts and convicted of others); Madsen v. McFaul, 643 F. Supp. 2d 962, 

968 (N.D. Ohio 2009) ("This Court realizes the jury acquitted Petitioner on two 

of the eight rape counts, but the carbon-copy nature of the Indictment and Bill 

of Particulars result in an effective acquittal on all eight counts for the purpose 

of evaluating this Petition."); cf. Isaac v. Grider, No. 98-6376, 2000 WL 571959 

(6th Cir. 2000) (unpublished table decision) (noting that "the identical charges 

introduced the risk of double jeopardy and, indeed, may have already resulted 

in double jeopardy in this prosecution given the unique facts of this case," 

23 
namely, where trial court acquitted defendant on four charges and then 

submitted six charges to jury, which convicted); Dorsey v. Banks, 749 F. Supp. 

2d 715, 743-46 (S.D. Ohio 2010) (finding double-jeopardy violation where trial 

court acquitted defendant on two charges but allowed a third charge to go to 

the jury, and there was evidence of multiple offenses). 

Where the earlier not-guilty verdicts are based on generic, identically 

worded counts both in the indictment and jury instructions, they must be 

given effect. Because those acquittals cannot be tied to any particular alleged 

crimes, they must necessarily act as acquittals on all the counts brought at 

that time, just as they would if Dunn had been indicted for additional identical 

counts after the first trial had resulted in only acquittals. If the Commonwealth 

retries Dunn for any of the counts originally at issue in his trial, he faces a risk 

of being tried for a count for which he has already been acquitted. There is 

simply no way, in this after-the-fact review, to definitively say on which counts 

the jury acquitted Dunn. The Commonwealth cannot hide behind jury 

instructions—found to be flawed by the Court of Appeals in the 11.42 appeal, 

and admitted to be erroneous by the Commonwealth itself—to avoid the risk 

that Dunn is being placed in double jeopardy by his retrial. 

As noted above, this Court has previously condemned the use of 

identically worded jury instructions on multiple counts that do not require the 

jury to factually distinguish one instance of a crime from another. Such 

instructions implicate multiple constitutional rights, including the right to due 

process. But this case illustrates the greater problem with the use of such 

instructions. Not only are the jury verdicts based on such instructions flawed, 

24 
but retrial cannot be had if the jury returned a mixed verdict. As the Ohio 

federal district court noted in Madsen, being convicted on "two out of [seven] 

counts ... result[s] in an effective acquittal on all [seven] counts." Madsen, 643 

F. Supp. 2d at 968. 

III. Conclusion 

A new trial in this case raises a substantial risk that Dunn will be tried 

for crimes for which he has already been acquitted, thereby violating his 

double-jeopardy right against successive prosecution. For that reason, the 

order of the Court of Appeals denying Dunn's petition for a writ of prohibition 

is reversed, and this case is remanded to the Court of Appeals to issue a writ in 

conformity with this opinion. 

Minton, C.J.; Hughes, Venters and Wright, JJ., concur. Keller, J., 

concurs in result only. Cunningham, J., not sitting. 

25 
COUNSEL FOR APPELLANT: 

Matthew McGavock Robinson 

Robinson & Brandt, P.S.C. 

629 Main Street, Suite B 

Covington, Kentucky 41011 

APPELLEE: 

Honorable Beth Lewis Maze 

Judge, Montgomery Circuit Court 

21st Judicial Circuit 

PO Box 1267 

Mt. Sterling, Kentucky 40353 

COUNSEL FOR REAL PARTY IN INTEREST: 

Andy Beshear 

Attorney General 

Jeffrey Allan Cross 

Assistant Attorney General 

Office of Criminal Appeals 

Attorney General's Office 

1024 Capital Center Drive 

Frankfort, Kentucky 40601 

Ronnie Lee Goldy, Jr. 

Commonwealth's Attorney 

44 West Main Street, Suite A 

Mt. Sterling, Kentucky 40353 

26