STATE OF FLORIDA, APPELLANT,
v.
JAMES BROWN, APPELLEE
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The State of Florida appealed the trial court's dismissal of aggravated assault and attempted sexual battery charges against James Brown based on a former jeopardy defense. The appellate court reversed, holding that the defendant's inconsistent positions regarding the date of the offense—first claiming a material variance as grounds for acquittal, then arguing the date was immaterial—estopped him from invoking the double jeopardy protection.
The trial court erred in granting the dismissal based on former jeopardy. The state did not charge the same offense twice; rather, it charged two distinct offenses occurring on different dates. The defendant is estopped from invoking double jeopardy because he took inconsistent positions by first claiming the date was material to obtain acquittal, then contending it was immaterial when facing a second prosecution.
[1] A bill of particulars specifying an exact date for an offense limits the prosecution to proving an offense on that date, if an objection is made.
[2] A defendant who obtains an acquittal based on the materiality of a date variance cannot later claim that the variance was immaterial to avoid a subsequent prosecution for…
Previewing 2 of 6 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“The test to sustain a plea of former jeopardy is that it must be made to appear that (1) There was a former prosecution in the same state for the same offense; (2) That the same person was in jeopardy on the first prosecution; (3) That the parties are identical in the same prosecution; (4) That the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar.”
Establishes the four-element test for former jeopardy that the court applied to the case
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe state initially charged Brown with aggravated assault and attempted sexual battery with a deadly weapon, alleging the offenses occurred between De…
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SCHEB, Chief Judge.
The state challenges the trial court’s dismissal of charges against appellee, James Brown, on the ground that he had twice been placed in jeopardy for the same offense.
The state charged appellee with aggravated assault and attempted sexual battery with a deadly weapon. The information and bill of particulars alleged that the two offenses occurred on or between December 26 and 27, 1979. However, the proof at trial established that the offenses occurred on December 24 and 25, 1979. Defense counsel moved for a judgment of acquittal on the basis of this variance, and the court granted his motion. Subsequently, the state filed a second information which alleged that appellee committed the aggravated assault and attempted sexual battery on December 25, 1979. The court granted defense counsel’s motion to dismiss on the ground that defendant had twice been placed in jeopardy.
In State v. Beamon, 298 So. 2d 376, 379-80 (Fla. 1974), the supreme court enumerated the elements of former jeopardy. It held that
[T]he test to sustain a plea of former jeopardy is that it must be made to appear that (1) There was a former prosecution in the same state for the same offense;
(2) That the same person was in jeopardy on the first prosecution;
(3) That the parties are identical in the same prosecution;
(4) That the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar. Applying this test to the facts of the present case indicates that the court erred in granting the motion to dismiss based on the plea of former jeopardy. The state did not twice charge appellee with the same offense. Rather, it charged him by different informations, with two offenses which occurred at different times. The defense of former jeopardy, therefore, does not apply. As the supreme court observed in Beamon:
It is the defendant — not the state — who is estopped. The defendant is estopped by virtue of his inconsistent positions in first claiming as a basis for acquittal the materiality of the date and then contending on the new information that the actual, different date of the alleged offense is immaterial now, so that whatever the day of the alleged offense he was acquitted of it in the first trial.
298 So. 2d at 378. Accord, State v. Mayor, 378 So. 2d 1324 (Fla. 3d DCA 1980).
Accordingly, we reverse the order granting the motion to dismiss and remand the case for further proceedings.
HOBSON and CAMPBELL, JJ., concur.
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GAY v. State, 432 So. 2d 602 (Fla. 2d DCA 1983)…t so elects. State v. Katz, 402 So. 2d 1184 (Fla.1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982); State v. Beamon, 298 So. 2d 376 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); State v. Brown, 404 So. 2d 805 (Fla. 2d DCA 1981). REVERSED. GRIMES, A.C.J., and CAMPBELL, J., concur. . The categorization of offenses under Brown v. State has been revised. When the supreme court adopted the present Florida Standard Jury Instructions in Criminal Cases, it di…
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State v. Veronique Nichelle Hicks, 712 So. 2d 1182 (Fla. 2d DCA 1998)…a motion to dismiss on the ground that jeopardy had attached during the trial on the same factual episode. Following a hearing, the trial judge agreed with Hicks and granted the motion. Because the result in this case is governed by State v. Brown, 404 So. 2d 805 (Fla. 2d DCA1981), we conclude that double jeopardy did not apply. In Brown, the information and bill of particulars alleged that the offenses occurred on or between December 26 and 27, 1979. The evidence at trial established that the offenses occur…
Authorities Cited
- State v. Beamon, 298 So. 2d 376 (Fla. 1974)
- State v. Mayor, 378 So. 2d 1324 (Fla. 3d DCA 1980)