Cited by

Heald v. Perrin, 123 N.H. 468, 475 (1983), superseded on other grounds by RSA 651:2, II-g, as stated in Nickles.

We first articulated that test in Heald v. Perrin, 123 N.H. 468 (1983), superseded on other grounds by RSA 651:2, II- g, as stated in State v. Nickles, 144 N.H. 673 (2000).

“If a difference in evidence is required to *202 sustain the offenses charged, the fact that they relate to and grow out of one transaction does not make them a single offense when two or more are defined by statutes.” Heald v. Perrin, 123 N.H. 468, 471 (1983) (quotation omitted); see also MacLeod, 141 N.H. at 429 (aggravated driving while intoxicated and second degree assault were not the same offense for double jeopardy purposes where proof of intoxication was necessary only to the former and

Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983), superseded on other grounds by RSA 651:2, Il-g.

Before proceeding, we note that the legislature developed the sentencing scheme at issue in direct response to our decisions in Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), and State v. Houtenbrink, 130 N.H. 385, 539 A.2d 714 (1988).

In Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), on which the defendant relies, we vacated a conviction and sentence for felonious use of a firearm, see RSA 650-A:l (1996), because the use of a gun had already been used to increase the offense of robbery from a class B to a class A felony.

Relying on Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), the defendant asserts that a court may impose a penalty pursuant to a sentencing enhancement statute only if “proof of the elements of the crimes as charged will in actuality require a difference in evidence.” Id.

Constant, 135 N.H. at 257, 605 A.2d at 208; Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983).

Our reasons for adopting the so-called same evidence test were sound, see generally Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), and we have applied it consistently and recently, see, e.g., State v. Brooks, 137 N.H. 541, 629 A.2d 1347 (1993).

The State concedes that, under the facts of this case, the two charges meet the “same evidence” test, see Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983), and that the dual convictions and sentences violate the double jeopardy clause of the State Constitution.

He argues that support for his argument lies in our decision in Heald v. Perrin, 123 N.H. 468, 473-74, 464 A.2d 275, 278 (1983), where we held that Heald’s convictions for robbery while armed with a deadly weapon and for felonious use of a firearm violated double jeopardy.

When considering the issue of double jeopardy, a subsequent prosecution is permissible only if “‘proof of the elements of the crimes as charged will in actuality require a difference in evidence.’” State v. Stratton, 132 N.H. 451, 454, 567 A.2d 986, 988 (1989) (quoting State v. Bailey, 127 N.H. 811, 813, 508 A.2d 1066, 1068 (1986), itself quoting Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983)) (emphasis in original).

When cumulative punishments are sought for offenses arising out of a single transaction, the focus of the inquiry is whether “proof of the elements of the crimes as charged will in actuality require a difference in evidence.” State v. Stratton, 132 N.H. 451, 454, 567 A.2d 986, 988 (1989) (quoting State v. Bailey, 127 N.H. 811, 813, 508 A.2d 1066, 1068 (1986), itself quoting Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983)) (emphasis in original).

Multiple indictments are permissible only if “proof of the elements of the crimes as charged will in actuality require a difference in evidence.” State v. Bailey, 127 N.H. 811, 813, 508 A.2d 1066, 1068 (1986) (quoting Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983)) (emphasis in original); see State v. Elbert, 128 N.H. 210, 512 A.2d 1114 (1986).

We further examined a double jeopardy claim under our State Constitution in Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983).

The defendant summarizes his position with a quotation from Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983) that “‘as the offenses were charged and proven in this case, not a single difference in evidence was required.’” The defendant would apply Heald and the New Hampshire double jeopardy test too broadly, however.

In Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), we stated that “the ‘same evidence’ and ‘same in law and fact’ tests have been virtually identical as applied in this State.” Id.

Part I, article 16 of the Constitution of New Hampshire forbids double jeopardy for the “same crime or offense,” and the fifth and fourteenth amendments of the Constitution of the United States forbid double jeopardy for the “same offense.” See Benton v. Maryland, 395 U.S. 784, 795 (1969); see generally Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983); Missouri v. Hunter, 459 U.S. 359 (1983); Blockburger v. United States, 284 U.S. 299 (1932).

*114 Because the general rule rests upon the possibility of proving different evidentiary facts, it does not justify the simultaneous prosecution of two charges that are entirely identical in fact as well as in law.

The defendant’s ineligibility for parole when sentenced for felonious use of a firearm under RSA chapter 650-A (Supp. 1983) and RSA 651:2, Il-b (Supp. 1983) renders the requirement of minimum and maximum terms inapplicable, and the court must impose a single, determinate sentence.

Heald v. Perrin, 123 N.H. 468, 473-74, *582 464 A.2d 275, 278 (1983); N.H. Const. pt.