FREDERICK EARL WEBSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court clarified that after reversing a second-degree felony murder conviction for insufficient evidence, the defendant cannot be retried on the same charge due to double jeopardy, nor on lesser included offenses unless the jury was charged on those offenses.
A defendant whose conviction for second-degree felony murder is reversed for insufficient evidence cannot be retried on that charge or lesser included offenses due to double jeopardy protections, unless the jury was instructed on those lesser offenses.
[1] After reversal of a felony murder conviction for insufficient evidence, double jeopardy bars retrial on the same charge and on lesser included offenses unless the jury wa…
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Join FLexlaw to unlock all legal intelligence“appellant cannot be re-tried upon the same charge of second-degree felony murder because of double jeopardy considerations”
Court's clarification that double jeopardy bars retrial on the same felony murder charge after reversal for insufficient evidence
Webster was convicted of second-degree felony murder of Lawrence Hargrett, the driver of a getaway car. The court had previously reversed this convict…
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PER CURIAM.
We clarify our opinion dated February 15, 1989, 540 So. 2d 124, by specifically providing instructions upon remand that, inasmuch as this court reversed appellant’s conviction of second-degree felony murder of the driver of the getaway car, Lawrence Hargrett, because of an insufficiency of the evidence, appellant cannot be re-tried upon the same charge of second-degree felony murder because of double jeopardy considerations. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). Nor can he be retried on any lesser included offenses if the jury was not charged upon those lesser included offenses. Bean v. State, 469 So. 2d 768 (Fla. 5th DCA 1984). As a general rule, a defendant may be retried on lesser offenses after a reversal of the conviction on the greater offense if all of the constituent essential elements of the lesser offense are not included within the elements of the greater offense. Bell v. State, 437 So. 2d 1057 (Fla.1983).
It is SO ORDERED.
UPON APPELLEE’S MOTION TO WITHDRAW MANDATE/MOTION FOR DIRECTIONS ON WHAT TO DO ON REMAND.
DOWNEY and WALDEN, JJ., concur. HERSEY, C.J., dissents without opinion.
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burks v. United States, 437 U.S. 1 (U.S. 1978)
- United States v. Martin Linen Supply Co., 430 U.S. 564 (U.S. 1977)
- Harris v. Oklahoma, 433 U.S. 682 (U.S. 1977)
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- Bean v. State, 469 So. 2d 768 (Fla. 5th DCA 1984)
- Harris v. State, 540 So. 2d 124 (Fla. 4th DCA 1988)
- Webster v. State, 540 So. 2d 124 (Fla. 4th DCA 1989)