STATE OF FLORIDA, APPELLANT,
v.
JERRY GREGORY, APPELLEE
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The State of Florida appealed a trial court's dismissal of a DUI charge against Jerry Gregory on double jeopardy grounds. The appellate court reversed, holding that under the Supreme Court's decision in United States v. Dixon, the DUI charge was not barred by double jeopardy because each offense charged contained distinct statutory elements.
The trial court's dismissal was reversed. Under United States v. Dixon, which overruled Grady v. Corbin, the proper double jeopardy analysis applies the Blockburger 'same elements' test. Because DUI, driving with a suspended license, and fleeing/eluding police each contain a statutory element not present in the others, prosecution of the DUI charge is not barred by double jeopardy.
[1] A criminal case pending on appeal at the time of a U.S. …
[2] The "same elements" test, as established in Blockburger v. …
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Join FLexlaw to unlock all legal intelligence“Blockburger established the 'same elements' test, which focuses on whether each offense contains a statutory element that is not contained in the other. If each offense has at least one element that the other does not, double jeopardy does not bar multiple punishment and successive prosecution.”
Establishes the controlling legal standard for double jeopardy analysis under Dixon
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Join FLexlaw to unlock all legal intelligenceGregory was charged with DUI (fourth offense), fleeing and attempting to elude a police officer, and driving with a suspended license. He pled guilty …
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RYDER, Acting Chief Judge.
The State of Florida seeks review of the trial court’s dismissal of a charge against Jerry Gregory on double jeopardy grounds. We reverse on the authority of United States v. Dixon, — U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and remand for further prosecution.
The state charged Gregory with driving under the influence (D.U.I.) as a fourth offense, fleeing and attempting to elude a police officer and driving with a suspended license. Gregory pled guilty to the charges of fleeing a police officer and driving with a suspended license. He was sentenced to jail terms of nine months for each of these charges, to run concurrently. He then moved to dismiss the D.U.I. charge on double jeopardy grounds. The trial court granted his motion, relying on Grady v. Corbin, 495 U.S. 508,110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
The state points out that the United States Supreme Court overruled Grady in Dixon. It asserts that Dixon is applicable here because this ease was pending on appeal at the time Dixon was decided. We agree. See State v. Murray, 644 So. 2d 533 (Fla. 4th DCA 1994) (“[bjecause this ease is currently on appeal, there is no reason why Dixon should not be applied retroactively”); State v. Dunsford, 634 So. 2d 319 n. 1 (Fla. 1st DCA 1994); Hernandez v. Superior Court in and for County of Maricopa, 179 Ariz. 515, 880 P. 2d 735 (Ct.App.1994).
Dixon announced a return to the double jeopardy analysis used in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger established the “same elements” test, which focuses on whether each offense contains a statutory element that is not contained in the other. If each offense has at least one element that the other does not, double jeopardy does not bar multiple punishment and successive prosecution. Dixon, — U.S. at —, 113 S.Ct. at 2856; Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The crimes for which the state charged Gregory, driving under the influence, driving with a suspended license and fleeing or attempting to elude a law enforcement officer all contain an element not present in the others. See §§ 316.913, 316.1935, 322.34, Fla.Stat. (1991). While Gregory does not even argue that he would prevail under the “same elements” test, we note that, under Dixon, prosecution of the D.U.I. charge is not barred by double jeopardy. We reverse and remand for further prosecution.
Reversed and remanded.
PATTERSON and FULMER, JJ., concur.
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State v. Rakran Amin Mateen, 678 So. 2d 449 (Fla. 2d DCA 1996)…uccessive prosecutions for offenses arising out of the same conduct. Blockburger established the “same elements” test, which examines whether each offense contains a statutory element that is not contained in the other offense. See State v. Gregory, 648 So. 2d 1220 (Fla. 2d DCA 1995); King v. State, 637 So. 2d 956 (Fla. 2d DCA 1994). In the present case, the crime charged in the information must be compared with the crimes charged in the indictment. The crimes charged in the indictment, first-degree murder, a…
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Stabler v. State, 668 So. 2d 1034 (Fla. 1st DCA 1996)…certified question from the county court. We decline to accept jurisdiction over this case as we believe this issue has been settled by the decisions of our sister courts. Davidson v. MacKinnon, 656 So. 2d 223 (Fla. 5th DCA 1995); State v. Gregory, 648 So. 2d 1220 (Fla. 2d DCA 1995); State v. Murray, 644 So. 2d 533 (Fla. 4th DCA 1994); and Gomez v. State, 621 So. 2d 578 (Fla. 3d DCA 1993). This cause is hereby TRANSFERRED to the Escambia County circuit court. MINER, WOLF and VAN NORTWICK, JJ., concur.…
Authorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Grady v. Corbin, 495 U.S. 508 (U.S. 1990)
- State v. Murray, 644 So. 2d 533 (Fla. 4th DCA 1994)
- State v. Dunsford, 634 So. 2d 319 (Fla. 1st DCA 1994)
- Johnson v. State, 634 So. 2d 319 (Fla. 1st DCA 1994)