PD-0581-24 09/18/2024
“Where jeopardy has indisputably attached, is the trial court’s purported vacatur, more than 30 days after the judgment, adequate to remove the defendant’s former jeopardy, so that she can be retried?”
Estevez was arrested for driving while intoxicated (DWI) and released on bond. Not long after, she was arrested again for DWI, this time with an open container. Rather than consider a bond modification or revocation in the first DWI, the trial court held Estevez in contempt for violating the bond conditions by committing the second DWI. The trial court later—over 30 days later—vacated that contempt order. The State proceeded with the prosecution on the second DWI. Estevez filed an application for a writ claiming that the prosecution was barred by Double Jeopardy because she was already placed in jeopardy by the contempt proceeding and order. The trial court denied her application.
The court of appeals affirmed. It held that there was no prior jeopardy because the contempt order had been vacated. In response to Estevez’s argument that the trial court lacked plenary power to do so, the court of appeals held that the trial court had the duty to vacate the order because it was void for two reasons. First, the show-cause order gave inadequate notice of the offense allegedly committed. Second, and alternatively, the evidence supporting the contempt order was insufficient because the only relevant evidence was the information charging the second DWI.
Estevez assumes in her petition that prosecution for the second DWI would be barred by a contempt order and argues that the latter cannot be ignored. First, regardless of whether the trial court had authority to vacate it, it was without her request or agreement and she already suffered punishment for it. Second, lack of notice would render a contempt order voidable upon objection, not a nullity to be corrected at any time sua sponte. Third, similarly, insufficiency of the evidence does not deprive the trial court of jurisdiction. Rather, it is a function of due process that can be forfeited. Again, Estevez did not challenge the sufficiency of the notice or evidence. Because the trial court had jurisdiction and general authority to enter a contempt order, neither deficiency rendered it void such that an untimely vacatur was permitted.
