JACK R. PERKINS, PETITIONER,
v.
THE HONORABLE GAYLE S. GRAZIANO, CIRCUIT COURT JUDGE OF VOLUSIA COUNTY, FLORIDA, RESPONDENT
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Petitioner Perkins sought a writ of prohibition to prevent retrial after an improvident mistrial declaration. The court held that the trial judge lacked manifest necessity to declare a mistrial when one juror failed to appear, and granted the writ, effectively barring retrial based on double jeopardy principles.
The court held that manifest necessity was lacking for the mistrial declaration. Because jeopardy had attached and the jury was discharged without legal justification and without defendant's consent, discharge was equivalent to an acquittal, and retrial is barred by the constitutional protection against double jeopardy.
[1] Jeopardy attaches when a jury is selected and sworn.
[2] A defendant has a valued right to have their trial completed by a particular tribunal.
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Join FLexlaw to unlock all legal intelligence“A defendant has a "valued right to have his trial completed by a particular tribunal."”
Establishes the fundamental right at stake in mistrial cases
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Join FLexlaw to unlock all legal intelligencePerkins was charged with aggravated battery and his trial began on July 6, 1992, with a six-member jury sworn, attaching jeopardy. The trial was reces…
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COBB, Judge.
The petitioner, Jack R. Perkins, seeks a writ of prohibition to bar his retrial after an improvident declaration of mistrial. See Parce v. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988), review denied, 542 So. 2d 988 (Fla. 1989). He contends he must be discharged pursuant to his plea of former jeopardy, and he is correct.
Perkins was charged with aggravated battery, and his trial commenced on Monday, July 6, 1992, at which time a six-member jury was selected and sworn. Jeopardy attached at that time. Rawlins v. Kelley, 322 So. 2d 10 (Fla.1975); Taylor v. State, 503 So. 2d 991 (Fla. 5th DCA 1987). The trial was then recessed until Friday, July 10, 1992. When court reconvened, however, it was determined that one juror had been erroneously advised by a deputy court clerk that the trial had been can-celled, and that he was excused. The trial judge attempted to contact the missing juror at home by telephone, but was unsuccessful. The defense offered to try the case with five jurors but the state refused. At 10:30 a.m. the court sua sponte declared a mistrial and discharged the jury without exploring the alternatives of continuance to a later time when the presence of the sixth juror could be procured or an alternate juror could be selected.
The issue before us is simply whether there was a “manifest necessity” for declaration of the mistrial. See United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824). A defendant has a “valued right to have his trial completed by a particular tribunal.” United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543, 556 (1971). If a jury is discharged before reaching a verdict for legally insufficient reasons and without the defendant’s consent, such discharge is equivalent to an acquittal and precludes a subsequent trial for the same offense. State ex. rel. Williams v. Grayson, 90 So. 2d 710 (Fla.1956).
The record in the instant case cannot support a finding of manifest necessity for the mistrial. We issue the requested writ and remand this cause to the trial court for discharge of the defendant.
WRIT OF PROHIBITION ISSUED.
GRIFFIN and DIAMANTIS, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thomason v. State, 620 So. 2d 1234 (Fla. 1993)…concluded the trial could not be held on August 16, he did not actively explore his other options before discharging the jury. This raises questions as to any conclusion that there is a manifest necessity.” Id. at 1226; see also Perkins v. Graziano, 608 So. 2d 532 (Fla. 5th DCA 1992) (no manifest necessity when trial judge sua sponte declared a mistrial because of one juror’s absence without exploring the alternative of continuance); Ostane v. Hickey, 385 So. 2d 110 (Fla. 3d DCA 1980) (trial judge, in declari…
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Blair v. State, 667 So. 2d 834 (Fla. 4th DCA 1996)…he told defendant in open court. He argues that because juror inconvenience does not constitute manifest necessity for a mistrial, a mistrial could not have been declared here. See Thomason v. State, 620 So. 2d 1234 (Fla.1993); Perkins v. Graziano, 608 So. 2d 532 (Fla. 5th DCA 1992). We are not faced with the trial court Jhaving declared a mistrial or having indicated that a mistrial was the only alternative. Certainly if defendant had questioned whether the juror’s scheduling problem required a continuance,…1 / 2
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Jackson v. State, 855 So. 2d 178 (Fla. 4th DCA 2003)….Ct. 2156, 57 L.Ed.2d 24 (1978). In the absence of manifest necessity for granting the mistrial, a retrial violates the fundamental principal that a defendant is entitled to have his trial completed by a particular tribunal. See Perkins v. Graziano, 608 So. 2d 532, 532-33 (Fla. 5th DCA 1992). The discharge of the jury for a legally insufficient reason, without the defendant’s consent and without manifest necessity, is equivalent to an acquittal. See Spaziano v. State, 429 So. 2d 1344, 1345 (Fla. 2d DCA 1983)…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Jorn, 400 U.S. 470 (U.S. 1971)
- The United States v. Josef Perez, 9 Wheat. 579 (U.S. 1824)
- Leone Berdina Rosacker v. Rosacker, 90 So. 2d 710 (Fla. 1956)
- Cockery v. Ashkenazy, 90 So. 2d 710 (Fla. 1956)
- Parce v. Honorable James S. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988)
- The Honorable Robert W. Rawlins v. Kelley, 322 So. 2d 10 (Fla. 1975)
- Taylor v. State, 503 So. 2d 991 (Fla. 5th DCA 1987)