LAZARO CORNEIRO, PETITIONER,
v.
THE HONORABLE HAROLD SOLOMON, AS JUDGE OF THE CIRCUIT COURT IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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Trial court's declaration of mistrial and discharge of jury without defendant's consent, absent manifest necessity, bars retrial on double jeopardy grounds.
A mistrial declared without the defendant's consent and without manifest necessity precludes retrial because it is equivalent to an acquittal.
[1] Once jeopardy attaches by swearing and charging a jury, a mistrial may be declared only upon manifest necessity and absolute urgency, and discharge of the jury without de…
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Join FLexlaw to unlock all legal intelligence“If the jury is discharged for legally insufficient reasons and without an absolute necessity and without the defendant's consent, such discharge is equivalent to an acquittal and precludes a subsequent trial for the same offense.”
Florida Supreme Court's statement in State v. Grayson establishing the rule that discharge of jury without consent and necessity bars retrial.
Corneiro was placed in jeopardy when a jury was sworn and charged with his deliverance in a criminal trial. The trial court declared a mistrial and di…
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PER CURIAM.
Upon consideration of the petition for writ of prohibition, response thereto, and argument of counsel, we conclude that the trial court’s declaration of mistrial and discharge of the sworn jury without obtaining petitioner’s consent precludes retrial on double jeopardy grounds.
It is well settled that a defendant in a criminal trial is placed in jeopardy when he is “put to trial on an indictment or information sufficient in form and substance to sustain a conviction before a court of .competent jurisdiction and a jury has been sworn and charged with his deliverance.” State v. Iglesias, 374 So. 2d 1060, 1062 (Fla. 3d DCA 1979). At this point in a criminal trial, a judge should not declare a mistrial and discharge the jury except in cases of manifest urgency and absolute necessity. State v. Grayson, 90 So. 2d 710 (Fla.1956); State v. Collins, 436 So. 2d 147 (Fla. 2d DCA 1983). As stated by the Florida Supreme Court in Grayson at 713:
If the jury is discharged for legally insufficient reasons and without an absolute necessity and without the defendant’s consent, such discharge is equivalent to an acquittal and precludes a subsequent trial for the same offense.
The record under consideration fails to disclose the manifest necessity required to justify the mistrial and clearly establishes that the court declared the mistrial without obtaining Corneiro’s consent. Finding, therefore, that a subsequent trial for the same offense would constitute double jeopardy, Grayson, we grant the writ of prohibition.
Writ issued and case remanded with directions to discharge petitioner on the offenses charged in this case.
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Carneiro v. State, 464 So. 2d 639 (Fla. 3d DCA 1985)…PER CURIAM. Notwithstanding that this court ordered the defendant acquitted on double jeopardy grounds in Corneiro v. Solomon, 450 So. 2d 599 (Fla. 3d DCA 1984), the trial judge denied his subsequent timely application for the return of the pistol allegedly employed in the offenses of which he was accused. The defendant appeals. While we understand and may share the lower court’s reluctan…
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State v. Claude, 468 So. 2d 536 (Fla. 3d DCA 1985)…PER CURIAM. Affirmed. State v. Grayson, 90 So. 2d 710 (Fla.1956); Corneiro v. Solomon, 450 So. 2d 599 (Fla. 3d DCA 1984); Ostane v. Hickey, 385 So. 2d 110 (Fla. 3d DCA 1980).…
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Labrada v. State, 589 So. 2d 468 (Fla. 3d DCA 1991)…S.Ct. 183, 102 L.Ed.2d 153; Davis v. State, 461 So. 2d 67 (Fla.1984) cert. denied 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663; State v, DiGuilio, 491 So. 2d 1129 (Fla.1986); Zarate v. State, 466 So. 2d 1176 (Fla. 3d DCA 1985); Corneiro v. Solomon, 450 So. 2d 599 (Fla. 3d DCA 1984), except that as to the adjudication of guilt for criminal mischief in the first degree, which error was admitted to by the state. We agree, and by this opinion amend said adjudication of guilt of a second degree misdemeanor. Aff…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leone Berdina Rosacker v. Rosacker, 90 So. 2d 710 (Fla. 1956)
- Cockery v. Ashkenazy, 90 So. 2d 710 (Fla. 1956)
- State v. Iglesias, 374 So. 2d 1060 (Fla. 3d DCA 1979)
- State v. Collins, 436 So. 2d 147 (Fla. 2d DCA 1983)