Supreme Judicial Court (April 3, 2008)
The crime of violating a 209A order is a lesser included offense of the crime of stalking in violation of that same restraining order. Therefore, double jeopardy prevents the prosecution of stalking in violation of G.L. c. 265, § 43(b), when based on incidents already prosecuted as violations of the 209A order.
After pleading guilty to three counts of violating a restraining order, Edge was indicted for the crime of stalking in violation of the same 209A order. The stalking indictment was based on the same incidents involved in the underlying restraining order. Edge failed to have the indictment dismissed on double jeopardy grounds, and he appealed. A single justice reported the case to the SJC.
The SJC concluded that a violation of a 209A order is a lesser included offense of the crime of stalking in violation of that order. The underlying conduct of the 209A violations resulted in convictions and sentences, and as such, a subsequent prosecution for a violation of G.L. c. 265, § 43(b) violates the double jeopardy clause.