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Abstract

A sagacious English liveryman named Tobias Hobson allowed each customer to choose the horse nearest the door, thereby presenting these customers with no real alternative. The State of Maine made a like proposition in Lemieux v. Robbins by implementing a novel criminal procedure whereby a defendant has a "choice" of either accepting his district court misdemeanor conviction as final, or appealing for a de novo trial by jury in superior court and possibly being convicted of a felony for contravening the same statute under which he was originally charged. The implementation of this procedure began with a complaint filed in Maine's district court charging defendant with committing an assault. He was found guilty by a judge and sentenced to pay a fine of $100, or serve 30 days in the county jail. He thereafter appealed to the superior court to receive a de novo trial by jury. Before this trial began, the county attorney secured an indictment against the defendant charging him with the same assault that was alleged in the district court complaint. Defendant moved to dismiss the indictment, alleging that concurrent prosecutions under the complaint and the indictment constituted double jeopardy. While defendant's motion was pending, the county attorney dismissed the district court complaint, and defendant's motion was thereafter denied. The case proceeded to trial upon the indictment, and at the trial the jury found defendant guilty of assault. Under the then existing sentencing procedure, the judge concluded that this assault was of a high and aggravated nature and sentenced defendant to serve one and one-half to five years in the state prison. The arguments presented by defendant's counsel before the court of appeals were that the procedure in Lemieux constituted double jeopardy and that the subsequent imposition of a harsher sentence was an unconstitutional limitation on defendant's appeal from district court. The court rejected both these contentions. A more effective argument would have been that this procedure violated defendant's federal and state rights to receive a trial by jury. When the Lemieux procedure is employed, in order for a defendant to receive a trial by jury he first must be adjudged guilty by a judge in district court and post an appeal bond as security. Then he must risk losing the protection of this verdict; having his bail increased; being reprosecuted for a felony; and having his sentence increased.

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