THE STATE OF FLORIDA, PETITIONER,
v.
HUGH KEITH, RESPONDENT
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PER CURIAM.
We grant the State’s petition for writ of certiorari and quash the pretrial order of the trial court which requires the prosecution to elect only one of the two charges against the defendant on which to proceed to trial and to dismiss the remaining charge. The order on review departs from the essential requirements of law by unnecessarily and prematurely1 interfering with prosecutorial discretion in the charging area, see State v. Vixamar, 687 So. 2d 300 (Fla. 4th DCA 1997); see also Alexander v. State, 470 So. 2d 856 (Fla. 1st DCA 1985); Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981), and therefore cannot stand.
Petition granted, order quashed.
. The basis of the order was a finding that defendant could not be convicted of both charges without violation of the double jeopardy rule. Making no judgment on the legal validity of this finding, we agree with the State that the order is premature because jeopardy has not yet attached in this case. See Brown v. State, 367 So. 2d 616 (Fla.1979).
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State v. Farnham, 752 So. 2d 12 (Fla. 5th DCA 2000)…ough 105 of the state’s amended information violated his right to be free from double jeopardy. However, our courts have ruled that a dismissal of charges based upon double jeopardy is premature because jeopardy has not attached. See State v. Keith, 732 So. 2d 9, 10 n. 1 (Fla. 3d DCA 1999). Accordingly, the court's dismissal order cannot be sustained based upon a double jeopardy theory.…
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State v. Roberson, 888 So. 2d 727 (Fla. 5th DCA 2004)…hnson v. State, 685 So. 2d 1369, 1370 (Fla. 2d DCA 1996). A dismissal of multiple counts in an information based upon the possibility that the counts may violate double jeopardy is premature because jeopardy has not yet attached. See State v. Keith, 732 So. 2d 9, 10 n. 1 (Fla. 3d DCA 1999). Accordingly, the pretrial dismissal/consolidation order in this case cannot be sustained based on a double jeopardy theory. State v. Farnham, 752 So. 2d 12, 14 (Fla. 5th DCA 2000).1 We make no judgment on the merits of…
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State v. Keith, 733 So. 2d 1162 (Fla. 3d DCA 1999)…666 So. 2d 181 (Fla. 2d DCA 1995). Further, the defendant has properly conceded that the trial court erred by requiring the State to elect between either the organized fraud count or the grand theft counts. State v. Keith, 24 Fla. L. Weekly D987, 732 So. 2d 9 (Fla. 3d DCA 1999). The order granting the defendant’s motion to dismiss is reversed, and the case is remand for further proceedings consistent with this opinion.…
Authorities Cited
- Brown v. State, 367 So. 2d 616 (Fla. 1979)
- Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981)
- Jollie v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981)
- State v. Rogel Vixamar, 687 So. 2d 300 (Fla. 4th DCA 1997)
- Alexander v. State, 470 So. 2d 856 (Fla. 1st DCA 1985)