THE STATE OF FLORIDA, APPELLANT,
v.
SAMUEL GELLIS, APPELLEE
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Florida appealed the dismissal of a criminal information charging Samuel Gellis with carrying a concealed firearm and weapon. The court held that the state is not barred by double jeopardy, collateral estoppel, or res judicata from re-filing an information previously dismissed under Florida Rule of Criminal Procedure 3.190(c)(4), and reversed the dismissal of count I while affirming the dismissal of count II on speedy trial grounds.
The state is not barred by any of these doctrines from re-filing the prior information. Res judicata applies only when the trial court is confronted with the identical motion to dismiss together with the identical traverse or demurrer as previously presented. Since the parties did not present the identical motions and traverses on the second filing, res judicata did not bar re-filing.
[1] The state is not barred by double jeopardy, collateral estoppel, or res judicata from refiling an information previously dismissed under Fla.R.Crim.P. …
[2] Res judicata bars refiling an information only when the trial court is presented with the identical motion to dismiss and the identical traverse or lack thereof as was be…
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Join FLexlaw to unlock all legal intelligence“The law is well-settled in Florida that the state is not barred from re-filing an information on the ground that the identical information has previously been dismissed under Fla.R.Crim.P. 3.190(c)(4).”
Establishes the principal holding that prior dismissal does not bar re-filing
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Join FLexlaw to unlock all legal intelligenceGellis was charged by information with two counts: carrying a concealed firearm and carrying a concealed weapon. Gellis filed a motion to dismiss unde…
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HUBBART, Judge.
The central question presented for review is whether the state is barred by the doctrines of double jeopardy, collateral estoppel or res judicata from re-filing an information which has previously been dismissed by the trial court under Fla.R.Crim.P. 3.190(c)(4). We hold that the state is not barred by any of these doctrines from re-filing the prior information. Accordingly, we affirm in part and reverse in part the order under review.
The facts pertaining to the above issue are as follows. The defendant Samuel Gel-lis was charged by information in two counts with (1) carrying a concealed firearm [§ 790.01(2), Fla.Stat. (1977)] and (2) carrying a concealed weapon [§ 790.01(1), Fla.Stat. (1977)] in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant thereafter filed a sworn motion to dismiss this information under Fla.R. Crim.P. 3.190(c)(4) on the ground that the material facts of the case were undisputed and these facts did not establish a prima facie case of guilt against the defendant. The state did not traverse this motion. The trial court heard and granted the motion.
The state subsequently re-filed the same information. The defendant filed two motions to dismiss this information. The first motion was based on the sole ground that the trial court had previously dismissed the identical information in the cause. The second motion sought to dismiss count II of the information (a misdemeanor charge) on speedy trial grounds. The trial court heard these motions and granted them in a single order from which the state now appeals. We have jurisdiction to entertain this appeal. § 924.07(1), Fla.Stat. (1977).
The law is well-settled in Florida that the state is not barred from re-filing an information on the ground that the identical information has previously been dismissed under Fla.R.Crim.P. 3.190(c)(4). The doctrines of double jeopardy, collateral estoppel and res judicata, whether considered individually or collectively, cannot, under these circumstances, bar the state from refiling the identical information. State v. Davis, 243 So. 2d 587, 590 (Fla.1971); Camp v. State, 293 So. 2d 114, 115, n.3 (Fla. 4th DCA 1974); State v. Giesy, 243 So. 2d 635, 636 (Fla. 4th DCA 1971). The doctrine of res judicata applies only where, upon the re-filing of said information, the trial court is confronted with the identical motion to dismiss together with the identical traverse or demurrer, or lack thereof, as the court was previously confronted with when it dismissed the first information. Then, and only then, the court would be compelled to dismiss the second information on res judi-cata grounds as the identical issue had previously been litigated between the parties in the defendant’s favor. Annot., 147 A.L.R. 991 (1943). Compare Balikes v. Speleos, 173 So. 2d 735 (Fla. 3d DCA 1965), cert. den. 193 So. 2d 434 (Fla.1967). The latter did not occur in this cause, and, accordingly, the instant information was not subject to dismissal.
The state concedes that the trial court correctly dismissed count II of the information on speedy trial grounds. Fla.R.Crim.P. 3.191(a)(1). We, therefore, affirm the dismissal of the instant information as to count II of the information. We reverse the dismissal of count I of the information and remand the cause to the trial court for further proceedings.
Affirmed in part; reversed in part.
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Citator
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Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985)…onted with the identical motion to dismiss together with the identical traverse or demurrer, or lack thereof, as the court was previously confronted with when it dismissed the first information.” Carter, 452 So. 2d at 1139; see also State v. Gellis, 375 So. 2d 885, 886 (Fla. 3d DCA 1979) (same). . To constitute a sufficient basis for vacatur the infirmity must render the judgment void not merely voidable. See generally 33 Fla.Jur.2d Judgments and Decrees §§ 322-24 (1982). . As the court stated in Burton: T…
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State v. Schafer, 376 So. 2d 927 (Fla. 2d DCA 1979)…easoned cases which hold that after pretrial dismissal on the merits pursuant to Fla.R.Crim.P. 3.190(c)(4), the State is not barred from refiling an information under certain circumstances. State v. Davis, 243 So. 2d 587 (Fla.1971); State v. Gellis, 375 So. 2d 885 (Fla. 3d DCA 1979). We hold that the State may refile a dismissed information if not barred by the constitutional prohibition of double jeopardy, by prior presentation of the identical issue by res judi-cata, by a previous final order of dismissal w…
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State v. Carter, 452 So. 2d 1137 (Fla. 5th DCA 1984)…the identical issue by res judicata, 3) by a previous final order of dismissal with prejudice, or by 4) the statute of limitations.2 See State v. Davis, 243 So. 2d 587 (Fla.1971); State v. Schafer, 376 So. 2d 927 (Fla. 2d DCA 1979); State v. Gellis, 375 So. 2d 885 (Fla. 3d DCA 1979). Clearly principles of double jeopardy would not bar such refiling since a pre-trial dismissal of a criminal case occurs before jeopardy attaches. Holloway v. State, 432 So. 2d 649 (Fla. 1st DCA 1983); State v. Schafer. As to the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Davis, 243 So. 2d 587 (Fla. 1971)
- State v. Giesy, 243 So. 2d 635 (Fla. 4th DCA 1971)
- Camp v. State, 293 So. 2d 114 (Fla. 4th DCA 1974)
- The Honorable Thomas N. Balikes v. Speleos, 173 So. 2d 735 (Fla. 3d DCA 1965)
- Balikes v. Speleos, 193 So. 2d 434 (Fla. 1967)