D.L.B., A CHILD, PETITIONER,
v.
HON. THOMAS S. KIRK, RESPONDENT
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A juvenile sought a writ of prohibition to prevent the state from refiling a delinquency petition for allegedly selling cocaine after the identical charge was previously dismissed when the state failed to present evidence at the adjudicatory hearing. The court granted the petition, finding that the state's refiling violated the double jeopardy prohibition and that the prior dismissal operated as an estoppel against refiling.
The court held that the state's refiling of the petition violates the constitutional prohibition against double jeopardy. The prior final order of dismissal, which explicitly found the juvenile had not committed the delinquent act, operates as an estoppel against refiling of the same charge. A writ of prohibition is an appropriate remedy to prevent such violation.
[1] A final order of dismissal, based on the state's failure to present evidence at a scheduled adjudicatory hearing, operates as an estoppel against the refiling of the same…
[2] The state may not refile a petition alleging a delinquent act if barred by a previous final order of dismissal with prejudice.
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“The order of dismissal in the prior case was a final order because it explicitly found that the juvenile had not committed the delinquent act as charged.”
Establishes that the prior dismissal constituted a final judgment that cannot be reopened
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Join FLexlaw to unlock all legal intelligenceThe state filed a delinquency petition alleging the juvenile unlawfully sold or delivered cocaine on June 6, 1989. A prior petition with identical all…
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Judge.
Petitioner, a juvenile, seeks a writ of prohibition to prevent further proceedings in a delinquency case. The state filed a petition alleging that the juvenile committed a delinquent act by unlawfully selling or delivering cocaine on June 6, 1989. A prior petition containing the identical allegations was dismissed because the state at the adjudicatory hearing was not prepared to present evidence and was unsuccessful in obtaining a continuance. In the order of dismissal the court specifically found that no evidence was presented and therefore the juvenile was not delinquent as charged. The state did not appeal the order of dismissal.
When the present petition alleging delinquency was filed, the juvenile moved to dismiss, claiming that the state was es-topped from refiling a petition alleging the same delinquent act. When the motion to dismiss was denied, the juvenile initiated this prohibition proceeding.
The order of dismissal in the prior case was a final order because it explicitly found that the juvenile had not committed the delinquent act as charged. The 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 of the same charge); Morley v. State, 446 So. 2d 259 (Fla. 1st DCA 1984) (state may not refile an information if barred by a previous final order of dismissal with prejudice). Although the state contends that jeopardy did not attach, the order of dismissal was a consequence of the state’s failure to present evidence at the scheduled adjudicatory hearing, and therefore the order was similar to a judgment of acquittal in a criminal case.
Prohibition is a proper remedy to prevent a violation of the constitutional prohibition against double jeopardy. See Parce v. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988), review denied, 542 So. 2d 988 (1989). We therefore grant the petition, and issue the writ of prohibition to prevent further proceedings in Case No. JU89-2584.
PETITION GRANTED; WRIT ISSUED.
COWART and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. T.D., 837 So. 2d 551 (Fla. 4th DCA 2003)…lly placed on the stand and begins to testify.” Here, no witness ever took the stand. Consequently, jeopardy would not have attached and the trial judge’s disposition of the charge cannot be viewed as a judgment of acquittal. But cf. D.L.B. v. Kirk, 551 So. 2d 611, 612 (Fla. 5th DCA 1989)(holding that an order of dismissal based on the State’s failure to present evidence at an adjudicatory hearing is “similar” to a judgment of acquittal and, if not successfully appealed by the State, will operate as an estopp…
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Z.C.B. v. State, 40 So. 3d 36 (Fla. 2d DCA 2010)…o suppress.1 Id. at 719. This court clearly stated, “Jeopardy does not attach in a nonjury trial until the court begins to hear evidence upon which it can base a determination of guilt or innocence of the charged offense.” Id.But see D.L.B. v. Kirk, 551 So. 2d 611, 612 (Fla. 5th DCA 1989) (“[T]he order of dismissal was a consequence of the State’s failure to present evidence at the scheduled adjudicatory hearing, and therefore the order was similar to a judgment of acquittal in a criminal case.”). Here, becau…
Authorities Cited
- Parce v. Honorable James S. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988)
- Morley v. State, 446 So. 2d 259 (Fla. 1st DCA 1984)
- Wander v. State, 471 So. 2d 83 (Fla. 5th DCA 1985)