ROY WANDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state's voluntary dismissal of its prior appeal left the trial court's dismissal order intact, making the doctrine of res judicata applicable to bar refiling the same charge.
The defendant was charged with trafficking cocaine and the trial court dismissed the charge based on the unconstitutionality of the statute. The state…
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COBB, Chief Judge.
The defendant, Roy Wander, was charged with trafficking in cocaine in March, 1983. He moved to dismiss, challenging the constitutionality of section 893.-135(l)(b), Florida Statutes (1983). The motion was granted by the trial judge in an order filed March 28, 1983, which stated that the ground of the dismissal was unconstitutionality of the statute.
The state appealed the dismissal order. While the appeal was pending, the state filed a notice of voluntary dismissal, stating in the notice that it intended to refile the information. Based on the notice, this court dismissed the appeal in August, 1983.
The state subsequently refiled the information, relying on the intervening decision of the Florida Supreme Court in State v. Kaufman, 430 So. 2d 904 (Fla.1983), which upheld the constitutionality of the trafficking statute. The defense, of course, moved to dismiss on the ground, inter alia, of res judicata. The denial of this motion is the dispositive issue on the instant appeal.
When the state dismissed its prior appeal, that dismissal left the trial court’s judgment in the same status as if no appeal had ever been taken. Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934). Therefore, that original judgment operated as an estoppel against the refiling of the same trafficking charge. See Morley v. State, 446 So. 2d 259 (Fla. 1st DCA 1984); Kearns v. Korda, 400 So. 2d 202 (Fla. 4th DCA 1981).
The principle of res judicata is applicable and, accordingly, we reverse and remand for discharge of the defendant.
REVERSED.
ORFINGER and COWART, JJ., concur.
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D.L.B. v. Hon. Thomas S. Kirk, 551 So. 2d 611 (Fla. 5th DCA 1989)…state’s refiling of the petition was a blatant attempt to circumvent the court’s final order of dismissal and the adverse ruling on its motion for continuance, and violates the constitutional prohibition against former jeopardy. Cf. Wander v. State, 471 So. 2d 83 (Fla. 5th DCA 1985), review denied, 482 So. 2d 349 (1986) (final order of dismissal operates as an estoppel against the refiling [*612] of the same charge); Morley v. State, 446 So. 2d 259 (Fla. 1st DCA 1984) (state may not refile an information if…
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Valentine Evelyn GE v. Swearingen & Assocs., Inc. (Fla. 5th DCA 2021)…ssal leaves the trial court’s judgment in the same status as if no appellate proceeding had ever been taken, and its effectiveness as an estoppel remains unimpaired.’” Morley v. State, 446 So. 2d 259, 260 (Fla. 1st DCA 1984); accord Wander v. State, 471 So. 2d 83, 84 (Fla. 5th DCA 1985). That has been the rule in Florida for quite some time. See Collins v. Hall, 157 So. 646, 648 (Fla. 1934) (“[W]hen this court then dismissed the writ of error, it left the original judgment of the circuit court in the same st…
Authorities Cited
- Collins v. Murray E. Hall, 117 Fla. 282 (Fla. 1934)
- State v. Kaufman, 430 So. 2d 904 (Fla. 1983)
- Morley v. State, 446 So. 2d 259 (Fla. 1st DCA 1984)
- Kearns v. The Honorable Judge Lawrence L. Korda, 400 So. 2d 202 (Fla. 4th DCA 1981)