THEODORE MENUT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the Florida immunity statute is coextensive with the Fifth Amendment and does not protect against perjury.
[1] Immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination and is sufficient to compel testimony over a claim of the p…
[2] A statement given under a grant of immunity may not be used to convict for perjury by inconsistent or contradictory statements, unless the state specifically refuses to g…
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Join FLexlaw to unlock all legal intelligenceTheodore Menut, convicted of murder, was called to testify in two trials against Christopher Clugston. He invoked his Fifth Amendment privilege, was g…
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HERSEY, Judge.
Theodore Menut, convicted of murder, appealed and while that appeal was pending here he was twice called to testify in trials against one Christopher Clugston. On each occasion he invoked his Fifth Amendment privilege, was granted immunity, refused to testify and was held in contempt. The two judgments of contempt are the subject of this consolidated appeal.
Appellant argues first that the immunity defined in Section 914.04, Florida Statutes (Supp.1982), is not coextensive with the scope of the Fifth Amendment because it does not provide derivative use immunity. “[Ijmmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination and therefore is sufficient to compel testimony over a claim of the privilege.” Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212, 222 (1972). The Florida Statute provides both use and derivative use immunity. State v. Harrison, 442 So. 2d 389 (Fla. 4th DCA, 1983); Novo v. Scott, 438 So. 2d 477 (Fla. 3d DCA 1983); State v. McSwain, 440 So. 2d 502 (Fla. 2d DCA, 1983).
Next, appellant maintains that he could not be compelled to testify because he would not be immune from prosecution for perjury. It is true that a grant of immunity is not a license to perjure oneself. It is equally true, however, that a statement given under a grant of immunity may not itself be used to convict for perjury by inconsistent or contradictory statements. McDonald v. State, 321 So. 2d 453 (Fla. 4th DCA 1975). See also The Florida Bar v. Doe, 384 So. 2d 30 (Fla.1980) and State v. Harris, 425 So. 2d 118 (Fla. 3d DCA 1982). This rule is obviously inapplicable where the state specifically refuses to grant immunity for perjury. Salem v. State, 305 So. 2d 23 (Fla. 3d DCA 1974), cert. denied, 315 So. 2d 193 (Fla.1975); Saunders v. State, 319 So. 2d 118 (Fla. 1st DCA 1975), cert. discharged, 344 So. 2d 567 (Fla.1977); Feldman v. State, 348 So. 2d 415 (Fla. 1st DCA 1977).
We affirm the conviction and find no fault with either of the sentences imposed.
AFFIRMED.
ANSTEAD, C.J., and DOWNEY, J., concur.
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State v. Rendina, 467 So. 2d 734 (Fla. 4th DCA 1985)…g to compel DeBock to testify. The parties concede that by subpoenaing DeBock for deposition in this criminal proceeding, the state has clothed DeBock with use and derivative use immunity via section 914.04, Florida Statutes (1983). Menut v. State, 446 So. 2d 718 (Fla. 4th DCA 1984). It is also clear that section 914.04 provides no immunity from disciplinary proceedings instituted by The Florida Bar and that such immunity can be provided only by the Supreme Court of Florida. Ciravolo v. The Florida Bar, 361…
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State v. Earnell Richards and Earsley Wilcher, 457 So. 2d 1124 (Fla. 3d DCA 1984)…be prosecuted for perjury for making any previous sworn statement so long as the statement is proved perjurious by other than the use of the witnesses’ immunized trial testimony. See The Florida Bar v. Doe, 384 So. 2d 30 (Fla.1980); Menut v. State, 446 So. 2d 718 (Fla. 4th DCA 1984). Certiorari granted; order of July 11, 1984, quashed.…
Authorities Cited (12 total)
- Kastigar v. United States, 406 U.S. 441 (U.S. 1972)
- McDONALD v. State, 321 So. 2d 453 (Fla. 4th DCA 1975)
- Penson v. State, 319 So. 2d 118 (Fla. 3d DCA 1975)
- James W. Smith et ux. v. Pierce, 315 So. 2d 193 (Fla. 1975)
- Novo v. The Honorable Thomas E. Scott, 438 So. 2d 477 (Fla. 3d DCA 1983)
- Salem v. State, 305 So. 2d 23 (Fla. 3d DCA 1974)
- THE Florida BAR v. DOE, 384 So. 2d 30 (Fla. 1980)
- State v. Harris, 425 So. 2d 118 (Fla. 3d DCA 1982)
- State v. Saunders, 344 So. 2d 567 (Fla. 1977)
- Gennett Gordon Feldman v. State, 348 So. 2d 415 (Fla. 1st DCA 1977)