WALLACE R. PERKINS, II, PETITIONER,
v.
THE HONORABLE VOLIE A. WILLIAMS, ETC., ET AL., RESPONDENTS
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A defendant acquitted of grand theft seeks prohibition against retrial on a robbery charge arising from the same taking of property. The court holds that the Fifth Amendment double jeopardy clause bars prosecution for the greater offense of robbery after acquittal on the necessarily lesser included offense of grand theft.
The court held that retrial on the robbery charge is prohibited by the Fifth Amendment double jeopardy clause. Once a defendant is acquitted of a lesser included offense, he cannot be retried on the greater offense, regardless of whether the acquittal resulted from insufficient evidence on a specific element (such as value) of the lesser charge.
[1] A retrial on a greater offense is barred by double jeopardy when the defendant has been acquitted of a lesser included offense that is a necessary constituent element of…
[2] Acquittal on a lesser included offense in a separate proceeding bars, on double jeopardy grounds, a subsequent prosecution for the greater offense.
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Join FLexlaw to unlock all legal intelligence“The petitioner's Fifth Amendment right against double jeopardy prevents a retrial of the charge of robbery.”
States the core holding that the Fifth Amendment bars retrial on the greater offense following acquittal on the lesser included offense.
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Join FLexlaw to unlock all legal intelligencePerkins was tried on charges of robbery and grand theft arising from a single taking of property. The jury deadlocked on the robbery charge, resulting…
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COBB, Judge.
The petitioner, Perkins, seeks a writ of prohibition to prevent his re-trial on a charge of robbery, his first trial on that charge resulting in a mistrial when the jury could not reach a verdict. At that time, the petitioner was acquitted by the same jury of another count charging him with grand theft. Since there was only one taking of property in the instant case, the underlying theft was a necessarily lesser included offense of the charged robbery. See Brown v. State, 206 So. 2d 377 (Fla.1968). Perkins argues that he should be discharged in regard to the robbery count because a retrial thereon would place him in double jeopardy since he cannot be retried for the greater offense after acquittal of one of its constituent elements. He is correct. The motion for discharge below was denied by the trial judge on authority of Hicks v. State, 414 So. 2d 1137 (Fla. 3d DCA 1982). In Hides the defendant was charged with robbery and grand theft in the same information and was found guilty on both charges. It was held that he could not be sentenced on the lesser included charge of grand theft based on section 775.021(4), Florida Statutes (1977), and the Florida Supreme Court case of State v. Hegstrom, 401 So. 2d 1343 (Fla.1981). But the following language also is found in Hicks:
A different result also obtains where ... the greater and lesser included offenses are prosecuted in two separate proceedings. In that event, ... acquittal on the lesser offense would bar, on double jeopardy grounds, a subsequent prosecution for the greater offense. Chikitus v. Shands, 373 So. 2d 904 (Fla.1979); Sanford v. State, 75 Fla. 393, 78 So. 340 (1918).
414 So. 2d at 1140.
The argument of the state is that the verdict of acquittal on the grand theft charge most probably was based on the insufficiency of the evidence to show that the money taken was of the value of $100.00 or more, whereas a robbery may occur irrespective of such value. Aside from its speculative nature, this argument misses the point: if the defendant was proven guilty at trial of the lesser included offense of petit theft under the count charging grand theft, he should have been convicted of the lesser offense, not simply acquitted. As the petitioner observes, the state attorney, in making the decision to separately charge him with grand theft, took the risk that an acquittal thereon would defeat the primary charge of robbery. Mahaun v. State, 377 So. 2d 1158 (Fla.1979).
The petitioner’s Fifth Amendment right against double jeopardy prevents a retrial of the charge of robbery. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Accordingly, we issue the writ of prohibition to the trial court and direct that he discharge the defendant in regard to the robbery count.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rodriquez v. State, 443 So. 2d 236 (Fla. 5th DCA 1983)…4 So. 2d 979 (Fla.1981). Therefore, there may be other elemental differences between statutory robbery and statutory grand theft in addition to the "force" and "property value or character" elements relied on in this opinion. . Perkins v. Williams, 424 So. 2d 990 (Fla. 5th DCA 1983); Castleberry v. State, 402 So. 2d 1231 (Fla. 5th DCA 1981), review denied, 412 So. 2d 470 (Fla. 1982), and McClendon v. State, 372 So. 2d 1161 (Fla. 1st DCA 1979), cited in the majority opinion merely stated of assumed without an…1 / 2
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Sirmons v. State, 603 So. 2d 82 (Fla. 5th DCA 1992)…proper, reaffirming our earlier decisions that the theft of property which supports a conviction of robbery, even though that theft be grand theft, is a necessarily lesser included offense of robbery. Rodriquez I, at 239, citing Perkins v. Williams, 424 So. 2d 990 (Fla. 5th DCA 1983); Castleberry v. State, 402 So. 2d 1231 (Fla. 5th DCA1981), review denied, 412 So. 2d 470 [*83] (Fla.1982). See also McClendon v. State, 372 So. 2d 1161 (Fla. 1st DCA 1979). Rodriquez I was quashed in Rodriquez v. State, 500 So.…
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Happ v. The Honorable Jerry T. Lockett, 543 So. 2d 1281 (Fla. 5th DCA 1989)…seeks a writ of prohibition contending that his prospective retrial on charges of murder, burglary, kidnapping and sexual battery is barred on the ground of double jeopardy. See Parce v. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988); Perkins v. Williams, 424 So. 2d 990 (Fla. 5th DCA 1983). Prior to Happ’s first trial in January, 1989, the trial judge, Judge Thurman, entered an order in limine which provided, inter alia, that The State and all witnesses in the case shall not mention, refer to, interrogate concern…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. Ohio, 432 U.S. 161 (U.S. 1977)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- Sanford v. State, 75 Fla. 393 (Fla. 1918)
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)
- Chikitus v. Shands, 373 So. 2d 904 (Fla. 1979)
- Hicks v. State, 414 So. 2d 1137 (Fla. 3d DCA 1982)