BRENNAN, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

397 U.S. 387

Waller v. Florida

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

MR. JUSTICE BRENNAN, concurring.

I join the holding of the Court that, because the municipal and state courts of a State are part of one [p396] sovereign judicial system, successive prosecutions in the municipal and state courts are not prosecutions by separate sovereign entities. Moreover, for the reasons stated in my concurring opinion in Ashe v. Swenson, post, p. 448, I believe that, unless this case fell within one of the exceptions to the "same transaction" rule, see, id. at 453 n. 7, 455 n. 11, the Double Jeopardy Clause barred a second trial since all the charges grew out of the same criminal episode.*

* I adhere to the Court's holding in Ashe v. Swenson, post at 437 n. 1, that our decision in Benton v. Maryland, 395 U.S. 784 (1969), holding the Double Jeopardy Clause of the Fifth Amendment applicable to the States, is "fully ‘retroactive.'" See also North Carolina v. Pearce, 395 U.S. 711 (1969).