HARVEY TORRES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2001-11-02
Nos. 2D99-2627, 2D99-3031
GREEN-and CASANUEVA, JJ., Concur.
808 So. 2d 234 Florida District Court of Appeal, Second District (2001) Positive Treatment
Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Harvey Torres appeals his convictions for attempted first-degree murder, robbery with a firearm, and two counts of aggravated assault. The court reverses these convictions on double jeopardy grounds because the trial judge improperly declared a mistrial after the jury was sworn without exhausting less drastic alternatives, but affirms his separate conviction for felon in possession of a firearm.


Holding

The court holds that the trial judge violated Torres' double jeopardy rights by failing to consider alternatives before declaring a mistrial, requiring reversal and discharge of the attempted murder, robbery, and aggravated assault convictions. The felon in possession conviction is affirmed because it was tried separately and not affected by the constitutional violation.


Headnotes

[1] Jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn.

[2] A trial judge must exhaust less drastic alternatives before declaring a mistrial over a defendant's objection after jeopardy has attached.

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Key Quotes

“Jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn.”

Establishes that double jeopardy protection arose once the first jury was sworn, making a second trial for the same charges constitutionally problematic.

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Facts & Procedural History

At Torres' first trial, after the jury was selected and sworn, the trial judge declared a mistrial on his own motion when two jurors complained that t…

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Opinion of the Court
BLUE, Chief Judge.

BLUE, Chief Judge.

Harvey Torres appeals his convictions and sentences for attempted first-degree murder, robbery with a firearm, and two counts of aggravated assault. We must require that Mr. Torres be discharged on these convictions on double jeopardy grounds because the trial judge erred in declaring a mistrial, after-the jury was sworn, in a prior trial. Mr. Torres also appeals the conviction and sentence for felon in possession of a firearm which was tried separately. As to this conviction and sentence, we affirm.

At Mr. Torres’ first trial, after the jury had been selected and sworn, the trial judge, on his own'motion, declared a mistrial. This occurred after two of the sworn jurors complained that the trial schedule would constitute a significant inconvenience and that they had not been given an opportunity to make this fact known before they were sworn as jurors. This perceived dilemma clearly upset the trial judge, who completely failed to explore less drastic options such as continuing the trial or utilizing the alternate juror if the concerns of one of the two complaining jurors could be alleviated. Immediately after the mistrial, a second jury was impaneled. The second jury returned verdicts of guilty on the charges we are required to reverse.

The protection of an accused against being twice put in jeopardy for the same offense is a right guaranteed by both the Fifth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution. Jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn. See Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). “[A] defendant has, a ‘valued right’ to have his or her trial completed by a particular tribunal.” Thomason v. State, 620 So. 2d 1234, 1236 (Fla.1993) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)).

The Double Jeopardy Clauses of the U.S. and Florida Constitutions impose upon the State a heavy burden to exhaust less drastic alternatives before declaring a mistrial over the defendant’s objection during a criminal trial, and all doubts about whether the mistrial was appropriate must be resolved in favor of the liberty of the citizen.

Rodriguez v. State, 743 So. 2d 538, 539 (Fla. 2d DCA 1998) (citing Thomason, 620 So. 2d at 1237), review denied, 729 So. 2d 918 (Fla.1999). This country’s jurisprudence has long demanded -that “manifest necessity” be demonstrated before resorting to a mistrial. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

Manifest necessity requires “trial judges, at the very least, to evaluate and discuss available alternatives before declaring a mistrial over the objection of the defendant.” Thomason, 620 So. 2d at 1238. Manifest necessity for declaring a mistrial without the defendant’s concurrence, may be demonstrated only if the trial court has considered and rejected all possible alternatives. Thomason, 620 So. 2d at 1239. Here, the trial judge failed to entertain alternatives, or even to fully inquire as to whether the two jurors had actual, rather than perceived, time conflicts. By his action the trial judge completely failed to honor the required protection of constitutional double jeopardy rights. We recognize that the result in this case may appear drastic, but the trial judge’s error requires us to reverse Mr. Torres’ convictions for attempted first-degree murder, robbery with a firearm, and two counts of aggravated assault and remand for a discharge. Regarding Mr. Torres’ conviction for felon in possession of a firearm, we affirm. This conviction was not affected by the constitutional violation that occurred at the first trial because it was not one the discharged jury was sworn to try. The record contains substantial, competent evidence to support the verdict and judgment for felon in possession of a firearm. See Bradford v. State, 460 So. 2d 926 (Fla. 2d DCA 1984). We also affirm the sentence on this count that was imposed pursuant to the proper sentencing guidelines.

Affirmed in part, reversed in part, and remanded.

GREEN-and CASANUEVA, JJ., Concur.


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Citator

Cited By

  • Chauncey Chavers v. State, 827 So. 2d 279 (Fla. 4th DCA 2002)
    …o have his trial completed by a particular tribunal may be subordinated to the public’s interest in a fair trial. Wade, 336 U.S. at 689, 69 S.Ct. 834; Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Torres v. State, 808 So. 2d 234 (Fla. 2d DCA 2001). Affirmed. MAY, J., concurs. FARMER, J., dissents with opinion.…
  • Adacia H. Douglas v. State, 28 So. 3d 931 (Fla. 3d DCA 2010)
    …ew York v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E. 2d 1134 (1979)). The State has a “heavy burden to exhaust less drastic alternatives before declaring a mistrial over the defendant’s objection during a criminal trial....” Torres v. State, 808 So. 2d 234, 235 (Fla. 2d DCA 2001). In the present case, the court did not rigorously consider less drastic alternatives. There was no record showing that a mistrial was a “necessity.” While this was an unusual circumstance, there were unexplored alternatives…
  • Chapinoff v. State, 2 So. 3d 1080 (Fla. 3d DCA 2009)
    …urt fatally failed in its required duty carefully to consider all reasonable alternatives — including gaining control of the courtroom — to doing so. See Joseph v. State, 988 So. 2d 133 (Fla. 1st DCA 2008); Rohr, 916 So. 2d at 1003; Torres v. State, 808 So. 2d 234 (Fla. 2d DCA 2001); Spaziano, 429 So. 2d at 1345-46. Instead, he seems to have considered none. (b) Nor may the mistrial be constitutionally excused on the basis of the other possible ground for such a holding: a voluntary act of the defendant, typ…

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