JAMES BRANNAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A Florida court granted a petition for writ of prohibition to prevent retrial of a defendant charged with shooting into an occupied vehicle, holding that jeopardy had attached when the jury was sworn before the original information was dismissed, barring prosecution under the Double Jeopardy Clause.
Jeopardy attaches when a jury is selected and sworn in a criminal trial, and once jeopardy has attached, a defendant cannot be retried on an amended information even if the original information was defective. Brannan is forever discharged of the offense charged.
[1] Jeopardy attaches when a jury has been selected and sworn in a criminal trial.
[2] A trial court's dismissal of a fatally defective information after jeopardy has attached does not permit the state to refile the same information and proceed to trial.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Jeopardy attaches when a criminal trial commences before a jury, United States v. Spinella, 506 F. 2d 426 (5th Cir. 1975), rehearing denied 515 F. 2d 510 (5th Cir. 1976), cert. denied 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147 (1976), and a trial before a jury commences when the jury has been selected and sworn, Bell v. Wainwright, 476 F. 2d 964 (5th Cir. 1973)”
Establishes the precise moment when jeopardy attaches in jury trials—when jury is selected and sworn
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBrannan was charged by information with shooting into an occupied vehicle. He pleaded not guilty, requested a jury trial, and a jury was selected and …
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PER CURIAM.
This cause is before us on petition for a writ of prohibition to prevent, on grounds of double jeopardy, petitioner’s trial of the offense of shooting into an occupied vehicle. Petitioner pleaded not guilty to the information charging that offense, requested trial by jury and a jury was selected and sworn. Thereafter, a motion to dismiss was filed alleging that the information was fatally defective, citing Hamilton v. State, 30 Fla. 229, 11 So. 523 (1892). The trial judge granted the motion to dismiss and released the jury. Counsel for the State filed an amended information worded exactly the same as the original information. Counsel for petitioner again moved to dismiss on the same grounds as his previous motion and also on the grounds that jeopardy had attached and precluded trial. The State argued that Shumake v. State, 90 Fla. 133, 105 So. 314 (1925) appeared to reach an opposite conclusion to that reached by the court in Hamilton v. State, supra. The trial judge denied the motion to dismiss and the cause was set for trial.
Jeopardy attaches when a criminal trial commences before a jury, United States v. Spinella, 506 F. 2d 426 (5th Cir. 1975), rehearing denied 515 F. 2d 510 (5th Cir. 1976), cert. denied 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147 (1976), and a trial before a jury commences when the jury has been selected and sworn, Bell v. Wainwright, 476 F. 2d 964 (5th Cir. 1973), cert. denied 414 U.S. 1000, 94 S.Ct. 352, 38 L.Ed.2d 235 (1973).
Accordingly, petition for writ of prohibition is GRANTED and petitioner is forever discharged of the offense charged.
McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.
By Amended Petition for Rehearing, the State brings to the attention of this Court the decisions of the United States Supreme Court in Lee v. United States, 432 U.S. 23 (1977), and United States v. Scott, 437 U.S. 82 (1978). Under these decisions, the trial court’s granting of defendant’s motion to dismiss the information’after the jury has been sworn and jeopardy attached does not bar subsequent refiling and trial on the same charges.
Accordingly, the petition for rehearing is granted, and writ of prohibition denied.
McCORD, BOOTH and LARRY G. SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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LOY v. Leone, 546 So. 2d 1187 (Fla. 5th DCA 1989)…of the trial” under Florida law. It is well established that a criminal case commences with the selection and swearing of the jury. Moore v. State, 368 So. 2d 1291 (Fla.1979); McDermott v. State, 383 So. 2d 712 (Fla. 3d DCA 1980); Brannan v. State, 383 So. 2d 234 (Fla. 1st DCA 1979); State ex rel. Capibianco v. Green, 377 So. 2d 979, 980 (Fla. 1st DCA 1979), cert. denied, 388 So. 2d 1110 (Fla.1980). There is no logical reason to formulate a different rule for civil cases. It has been held in other states tha…1 / 2
Authorities Cited
- United States v. Scott, 437 U.S. 82 (U.S. 1978)
- LEE v. United States, 432 U.S. 23 (U.S. 1977)
- Brown v. United States, 423 U.S. 917 (U.S. 1975)
- Popeko v. United States, 423 U.S. 917 (U.S. 1975)
- United States v. Spinella, 506 F.2d 426 (5th Cir. 1975)
- Hamilton v. State, 30 Fla. 229 (Fla. 1892)
- Shumake v. State, 90 Fla. 133 (Fla. 1925)
- Bell v. Louie L. Wainwright, 476 F.2d 964 (5th Cir. 1973)
- Boyd v. Cardwell, 414 U.S. 1000 (U.S. 1973)
- Attwood v. Patterson, 414 U.S. 1000 (U.S. 1973)