ROBERTO FERIA, PETITIONER,

v.

THE HONORABLE THOMAS SPENCER, CIRCUIT COURT JUDGE OF DADE COUNTY, FLORIDA, RESPONDENT

Fla. 3d DCA | 1993-03-16

No. 93-151

Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.

616 So. 2d 84 Florida District Court of Appeal, Third District (1993) Positive Treatment

Cited by 3 cases

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Holding

The court held that a mistrial declared sua sponte without manifest necessity or defendant's consent violates double jeopardy protections.

Facts & Procedural History

The trial court declared a mistrial without the defendant's consent during the state's redirect examination. The defendant did not consent to the mist…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Consent To Mistrial Sua Sponte Mistrial Manifest Necessity Double Jeopardy

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Opinion of the Court

PER CURIAM.

The petitioner, Roberto Feria, petitions this court to issue a writ prohibiting his reprosecution based on the constitutional prohibition against double jeopardy. We grant the writ of prohibition.

During the state’s redirect examination of one of its witnesses the trial court, sua sponte, and without the defendant’s consent, declared a mistrial and discharged the jury. The defendant’s silence when the trial court granted the mistrial cannot be construed as consent. See State v. Grayson, 90 So. 2d 710 (Fla.1956); Allen v. State, 52 Fla. 1, 41 So. 593 (1906); State v. McNeil, 362 So. 2d 93 (Fla. 1st DCA 1978). Moreover, a trial court may only discharge a jury when there is a “manifest necessity” for the act. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); State v. Grayson, 90 So. 2d 710 (Fla.1956).

In the instant case, the mistrial was not dictated by manifest necessity. In fact, the trial court had no legally sufficient reason to declare a mistrial. Therefore, “the discharge is equivalent to an acquittal and precludes a subsequent trial for the same offense.” Grayson, 90 So. 2d at 713. Any retrial would violate the defendant’s constitutional right not to be placed in double jeopardy.

Writ of prohibition issued.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Dwaine Merchant v. State, 201 So. 3d 146 (Fla. 3d DCA 2016)

…State, 52 Fla. 1, 41 So. 593 (1906) (holding that the defendant’s “silence or failure to object or protest against the discharge of the jury did not constitute a consent or a waiver of his constitutional right” of double jeopardy); Feria v. Spencer, 616 So. 2d 84 (Fla. 3d DCA 1993) (holding a “defendant’s silence when the trial court granted the mistrial cannot be construed as 'Consent.”); Spaziano v. State, 429 So. 2d 1344, 1345 (Fla. 2d DCA 1983) (holding “[a] defendant’s silence or his failure to object o…
State v. Jones (Fla. 3d DCA 2021)

Authorities Cited

The United States v. Josef Perez, 9 Wheat. 579 (U.S. 1824)
Allen v. State, 52 Fla. 1 (Fla. 1906)
Leone Berdina Rosacker v. Rosacker, 90 So. 2d 710 (Fla. 1956)
Cockery v. Ashkenazy, 90 So. 2d 710 (Fla. 1956)
Smith v. State of Fla. ex. rel. David H. Bludworth, 362 So. 2d 93 (Fla. 4th DCA 1978)
State v. McNEIL, 362 So. 2d 93 (Fla. 1st DCA 1978)

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