STATE OF FLORIDA, APPELLANT,
v.
JAMES BROWN A/K/A JAMES SMITH, APPELLEE
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Florida appeals the trial court's dismissal of a grand theft charge based on double jeopardy principles, arguing that the defendant could have committed the theft as a principal without being the same person who physically took the victim's purse. The appellate court reverses and remands because the collateral estoppel issue is not yet ripe for appellate review and requires a factual determination by the trial court.
The trial court erred in dismissing the grand theft charge. However, the collateral estoppel issue raised by the defendant is a factual question not ripe for appellate review and must first be determined by the trial court, as no evidence regarding the dismissed count has been presented on appeal.
[1] A defendant seeking to invoke collateral estoppel based on a prior acquittal must prove by convincing and competent evidence that the jury in the prior trial necessarily…
[2] The issue of collateral estoppel is not ripe for appellate review when no evidence has been presented to establish the factual basis for the estoppel claim.
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Join FLexlaw to unlock all legal intelligence“the burden is on the defendant to prove by convincing and competent evidence that the jury in the first trial necessarily decided the issue sought to be foreclosed”
Establishes the standard for collateral estoppel defense under Ashe v. Swenson
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Join FLexlaw to unlock all legal intelligenceJames Brown was charged with attempted kidnapping, robbery of a purse, and grand theft of a motor vehicle. Brown accosted a victim in a parking lot, s…
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Judge.
The defendant below, James Brown, was charged with attempted kidnapping, robbery of a purse, and grand theft of a motor vehicle. According to facts adduced at trial, Brown accosted the victim in a parking lot and struggled with her; she fought him off and ran away; he followed her for a few steps, returned to the location of her car, picked up her purse and car keys which had dropped during the struggle, and drove away with the victim’s car. The jury was unable to reach a verdict and a mistrial was declared.
Thereafter, Brown moved to dismiss Count III, the charge of grand theft of the vehicle, on the ground that such would constitute double jeopardy since the robbery of the purse was the same offense, the two charges involving “a single taking” and “one single underlying act,” apparently relying on the Carawan
case. The trial court agreed and dismissed Count III. Subsequently, Brown was retried on the remaining two counts and was acquitted by the jury.
The state now appeals the trial court’s dismissal of the charge of grand theft of the motor vehicle. Clearly, this dismissal was error by the trial court, and that error basically is conceded by the appellee. Nevertheless, Brown contends that the true issue is whether the trial court’s error in dismissing Count III has been rendered moot (i.e., harmless) by his subsequent acquittal of the other two counts. That acquittal, according to the appellee’s brief, was based on the issue of identity; therefore, he contends, the state is now collaterally estopped to prosecute Brown for theft of the vehicle pursuant to the United States Supreme Court case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
We agree with the state that the collateral estoppel issue is a factual one that is not ripe for review. As the appellee acknowledges in his brief, “the burden is on the defendant to prove by convincing and competent evidence that the jury in the first trial necessarily decided the issue sought to be foreclosed.” See State v. Short, 513 So. 2d 679, 681 (Fla. 2d DCA 1987), rev. denied, 520 So. 2d 586 (Fla.1988).
The state argues, in effect, that Brown could have been a principal in the theft of the car, which ultimately was recovered in Duval County, without having been the same individual who forcibly took it from the immediate possession of the victim. Since no evidence has been presented in regard to the dismissed count, we do not have a factual basis to determine the estoppel issue. That determination should first be made by a trial court.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
GRIFFIN and DIAMANTES, JJ., concur. . Carawan v. State, 515 So. 2d 161 (Fla.1987).
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Citator
Cited By
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State v. Acevedo, 632 So. 2d 1130 (Fla. 1st DCA 1994)…at 1206. See also Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The burden is on the defendant to prove by convincing and competent evidence that the jury necessarily decided the issue sought to be foreclosed. State v. Brown, 590 So. 2d 991 (Fla. 5th DCA 1991); State v. Short, 513 So. 2d 679 (Fla. 2d DCA 1987), rev. denied, 520 So. 2d 586 (Fla.1988). As we view this record, collateral es-toppel does not preclude prosecution of ap-pellee on the remaining charges. We are unable to say w…
Authorities Cited
- Ashe v. Swenson, 397 U.S. 436 (U.S. 1970)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Short, 513 So. 2d 679 (Fla. 2d DCA 1987)