STATE OF FLORIDA, APPELLANT,
v.
JAMES MICHAEL HOWE, APPELLEE
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The State appealed a trial court's dismissal of charges based on double jeopardy after a mistrial was declared due to a prosecutorial comment in closing argument. The court reversed, holding that double jeopardy protections do not bar retrial unless the prosecutor's misconduct was made in bad faith and intentionally designed to provoke the mistrial, not merely made intentionally or negligently.
Double jeopardy does not bar retrial when a mistrial is declared with the defendant's consent unless the prosecutor's conduct was made in bad faith and intentionally designed to provoke the mistrial. A prosecutor's intentional, well-researched statement made in good faith does not constitute the bad faith conduct necessary to invoke double jeoparty protection.
[1] A criminal prosecution is not barred by double jeopardy when a prior mistrial was declared with the defendant's consent, unless the mistrial was based on bad faith prosec…
[2] Mere error by a judge or prosecutor resulting in a defendant's request for a mistrial is insufficient to bar reprosecution.
Previewing 2 of 5 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“Generally, a criminal prosecution is not barred by double jeopardy when the prior mistrial was declared with the defendant's consent, except where there is a showing that the prior mistrial was based on bad faith prosecutorial, or trial court, conduct intentionally designed to provoke such a mistrial.”
Establishes the standard for when double jeopardy bars reprosecution after a mistrial—bad faith conduct intentionally designed to provoke mistrial is required, not mere intentional statements.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring closing argument, the state attorney commented that both the State and defense counsel had the same subpoena powers, responding to defense coun…
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LETTS, Chief Judge.
The defendant’s trial resulted in a mistrial because of a comment by the state attorney in closing argument. The State filed an amended information, and the defendant responded with a motion to dismiss based on double jeopardy, which the trial court granted. We reverse.
Referring to the defense counsel’s comment that the State did not call certain witnesses, the state attorney responded, “Ladies and Gentlemen, I submit to you that both the State and Mr. McGee have the same subpoena powers.”
The defendant argued that this was a comment on his right not to put on any evidence, and that the remark made the jury think that he had an affirmative duty to do so. The state attorney responded that the defense had opened the door, and that she had a case holding that her remarks were fair comment.
At the hearing on the motion to dismiss on double jeopardy grounds, the same state attorney declared that her comment was not something that was negligently made by her nor was it made in bad faith, but rather made because in her professional opinion she had a right to say it. Nevertheless, the court granted the motion “on the grounds that the prosecutorial comment was intentionally made, not negligent, but intentional, because the prosecutor thought she had a right to comment on that.”
Generally, a criminal prosecution is not barred by double jeopardy when the prior mistrial was declared with the defendant’s consent, except where there is a showing that the prior mistrial was based on bad faith prosecutorial, or trial court, conduct intentionally designed to provoke such a mistrial. State v. Iglesias, 374 So. 2d 1060 (Fla. 3d DCA 1979). Mere error by the judge or prosecutor resulting in the defendant’s request for mistrial is not sufficient to bar reprosecution. Bell v. State, 413 So. 2d 1292 (Fla. 5th DCA 1982). While bad faith conduct by the judge or prosecutor will bar a retrial, gross negligence, not calculated by the prosecutor to provoke a mistrial, will not. Bell v. State, supra.
Here, the prosecutor testified that she had researched the comment and concluded that it was permissible.1 The trial court disagreed because the prosecutor intentionally rather than negligently made the remark, believing she had the right to do so. However, the kind of statement by a prosecutor which invokes double jeopardy is not the mere utterance of an intentional or purposely made statement, but additionally it must be made in bad faith and intentionally designed to provoke a mistrial. There is no evidence whatever of that here and indeed the judge’s order indicates otherwise. To affirm would be to support an anomalous situation where a negligent, thoughtless remark would not invoke double jeopardy, but a legally well-thought out, good faith remark would.
REVERSED AND REMANDED.
DOWNEY, J., and GOLDMAN, MURRAY, Associate Judge, concur. . Such a remark has in fact been held permissible in Brown v. State, 420 So. 2d 916 (Fla. 1st DCA 1982).
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State v. Dixon, 478 So. 2d 473 (Fla. 2d DCA 1985)…ant seeks or consents to a mistrial. A well-circumscribed exception to that principle comes into play only in the rare circumstance of a mistrial induced by prosecutorial bad faith or judicial conduct designed to produce the mistrial. State v. Howe, 432 So. 2d 795 (Fla. 4th DCA 1983); Bell v. State, 413 So. 2d 1292 (Fla. 5th DCA 1982). A defendant who has achieved a mistrial based upon the prosecutor’s conduct, however, cannot be the beneficiary of prior jeopardy merely because of error, or, indeed, even gros…
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State v. Hutchens, 517 So. 2d 27 (Fla. 3d DCA 1987)…y from ever retrying the defendant for the same crime. The court refused to expand the exception to cover prosecutorial misconduct which amounts to gross negligence but was not calculated to provoke a mistrial. Id. at [*29] 1063. See State v. Howe, 432 So. 2d 795, 796 (Fla. 4th DCA 1983); Bell v. State, 413 So. 2d 1292 (Fla. 5th DCA 1982). It is the defendant’s contention on appeal, as it was in his motion for dismissal, that the state’s actions in connection with the introduction of the tape in his 1984 tr…
Authorities Cited
- State v. Iglesias, 374 So. 2d 1060 (Fla. 3d DCA 1979)
- Bell v. State, 413 So. 2d 1292 (Fla. 5th DCA 1982)
- Brown v. State, 420 So. 2d 916 (Fla. 1st DCA 1982)