RUDOLPH JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rudolph Johnson appealed his conviction and sentences following an adverse jury verdict, raising double jeopardy and discovery violation claims. The Florida appellate court affirmed, finding no reversible error in either the trial court's denial of the motion to dismiss or its refusal to conduct a Richardson hearing.
The court held that the trial court properly denied the double jeopardy motion because the prosecutor's misconduct was not shown to be intentional, and properly refused a Richardson hearing because oral, unrecorded witness statements are not required to be disclosed under Florida's criminal procedure rules.
[1] A mistrial declared at the defendant's request due to prosecutorial misconduct does not bar retrial on double jeopardy grounds unless the misconduct was intended to provo…
[2] Prosecutorial misconduct that is reckless, but not intended to provoke a mistrial, does not trigger double jeopardy protections against retrial.
Previewing 2 of 4 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“there is no showing that the prosecuting attorney's misconduct in commenting on the defendant's failure to testify — which resulted in a mistrial, upon the defendant's request, at a prior trial of this cause — was intended to goad the defendant into moving for such a mistrial”
Establishes the court's reasoning that intentional provocation is required for double jeopardy protection, which was lacking here
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Join FLexlaw to unlock all legal intelligenceJohnson was tried after a prior trial had resulted in a mistrial when the prosecutor commented on Johnson's failure to testify. At the second trial, J…
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PER CURIAM.
This is an appeal by the defendant Rudolph Johnson from multiple convictions and sentences based on an adverse jury verdict. The defendant raises two points on appeal which we conclude do not present reversible error, and, accordingly, we affirm. We reach this result based on the following briefly stated legal analysis.
First, we conclude that the trial court properly denied the defendant’s motion to dismiss based on double jeopardy grounds because, on this record, there is no showing that the prosecuting attorney’s misconduct in commenting on the defendant’s failure to testify — which resulted in a mistrial, upon the defendant’s request, at a prior trial of this cause — was intended to goad the defendant into moving for such a mistrial. The record reveals that the prosecuting attorney made the comment under the mistaken belief that the defendant was required to testify in this case if he displayed his teeth to the jury as he had offered to do at trial. The trial judge found that the prosecuting attorney’s misconduct was not designed to intentionally provoke a mistrial, although he regarded the prosecutor’s misconduct as being, in effect, reckless. This being so, it is clear that no reversible error is presented by the denial of the motion to dismiss. See, e.g., Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); State v. Iglesias, 374 So. 2d 1060 (Fla. 3d DCA 1979).
Second, the trial court did not commit reversible error in failing to conduct a Richardson hearing, see Richardson v. State, 246 So. 2d 771 (Fla.1971), on the state’s failure to disclose to the defense an oral, unrecorded statement of a state witness made to the prosecuting attorney. The state was not required to reveal such a statement to the defendant under Fla.R. Crim.P. 3.220(a)(1)(h), and accordingly, there was no discovery violation by the state upon which to conduct a Richardson hearing.1 Whitfield v. State, 479 So. 2d 208, 215-16 (Fla. 4th DCA 1985). The final judgments of conviction and sentences under review are, therefore, in all respects
Affirmed.
. The defendant’s reliance on Waters v. State, 369 So. 2d 979 (Fla. 3d DCA 1979), is misplaced because that case involved the prosecutor’s duty to disclose "the substance of oral statements made by the accused” pursuant to Fla.R.Crim.P. 3.220(a)(l)(iii), which oral statements were disclosed through a change in a state witness’ previous testimony. Here, the change of witness testimony complained of did not concern any statement made by the accused. Any duty of disclosure of such witness’ testimony arises under Fla.R.Crim.P. 3.220(a)(l)(ii), which defines a discoverable "statement” of such witness as “a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the [s]tate and recorded contemporaneously with the making of such oral state-ment_” Fla.R.Crim.P. 3.220(a)(1)(h) (emphasis added).
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State v. Evans, 770 So. 2d 1174 (Fla. 2000)…rescribed by the rule. See, e.g., Olson v. State, 705 So. 2d 687, 690-91 (Fla. 5th DCA 1998) (stating that the clear implication of rule 3.220(b)(1)(B) is that witness statements “if not written or recorded, are not discoverable”); Johnson v. State, 545 So. 2d 411, 412 (Fla. 3d DCA 1989) (determining that State was not required to disclose to the defendant an oral, unrecorded statement made by a state witness to the prosecutor); Whitfield v. State, 479 So. 2d 208, 215-16 (Fla. 4th DCA 1985) (determining that…
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State v. McFADDEN, 50 So. 3d 1131 (Fla. 2010)…rescribed by the rule. See, e.g., Olson v. State, 705 So. 2d 687, 690-91 (Fla. 5th DCA 1998) (stating that the clear implication of rule 3.220(b)(1)(B) is that witness statements “if not written or recorded, are not discoverable”); Johnson v. State, 545 So. 2d 411, 412 (Fla. 3d DCA 1989) (determining that State was not required to disclose to the defendant an oral, unrecorded statement made by a state witness to the prosecutor); Whitfield v. State, 479 So. 2d 208, 215-16 (Fla. 4th DCA 1985) (determining that…1 / 2
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Adela Herrera v. State, 570 So. 2d 1128 (Fla. 3d DCA 1990)…Affirmed. Bush v. State, 461 So. 2d 936 (Fla.1984), cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986); Justus v. State, 438 So. 2d 358 (Fla.1983), cert. denied, 465 U.S. 1052, 104 S.Ct. 1332, 79 L.Ed.2d 726 (1984); Johnson v. State, 545 So. 2d 411 (Fla. 3d DCA), review denied, 551 So. 2d 461 (Fla.1989).…
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
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982)
- Whitfield v. State, 479 So. 2d 208 (Fla. 4th DCA 1985)
- State v. Iglesias, 374 So. 2d 1060 (Fla. 3d DCA 1979)
- Waters v. State, 369 So. 2d 979 (Fla. 3d DCA 1979)