A person who violates a court order of protection in Tennessee may be prosecuted under criminal contempt provisions or under a criminal statute criminalizing violations of orders of protection. However, charging both criminal contempt and violation of the criminal statute may be double jeopardy, depending on the circumstances of the case.
Though the Tennessee Attorney General has previously opined that criminal prosecution for violating an order of protection in addition to criminal contempt prosecution is constitutional, the Tennessee Court of Criminal Appeals has recently determined that in some cases it may not be. That was the case in State v. Matthews, M2010-02010-02601-CCA-R3-CD.
In the Matthews case, the Defendant was first prosecuted for criminal contempt for a single violation of an order of protection, then charged with a crime for violating a statute criminalizing violations of orders of protection. The Tennessee Court of Criminal Appeals found that this may be permissible under the protections of the United States Constitution as interpreted by the U.S. Supreme Court. Criminal contempt and the criminal statute contain different offense elements. However, the Tennessee Supreme Court has adopted the view that under the Tennessee Constitution's own double jeopardy protections, courts should consider not just whether the different statutes have the same elements, but also whether they have the same purpose. State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996). In analyzing a double jeopardy claim under Tennessee law, courts must consider whether the statutes have the same elements, whether they have the same purpose, whether the convictions rely upon the same evidence, and whether there are multiple victims or multiple discrete acts. Denton.
In the Matthews case, the Court of Criminal Appeals determined that the criminal contempt charge and the criminal statute served the same purpose, relied upon the same evidence, and involved the same victim and same acts. Therefore, in this case, the trial court was correct in dismissing the criminal conviction as violative of protections against double jeopardy, after the criminal contempt prosecution. The Court of Criminal Appeals affirmed the trial court ruling in a State appeal of that ruling.
For more information on whether specific dual convictions may violate protections against double jeopardy, contact Hindman & Associates.