MICHAEL KEHN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 5th DCA | 2010-09-03
No. 5D10-1975
MONACO, C.J., LAWSON and EVANDER, JJ., concur.
44 So. 3d 640 Florida District Court of Appeal, Fifth District (2010) Positive Treatment
Cited by 2 cases

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Synopsis

Michael Kehn sought certiorari review challenging an order denying his petition for writ of prohibition to prevent prosecution on a DUI charge after successfully withdrawing his plea. The court rejected his arguments that further prosecution would violate speedy trial rights, double jeopardy protections, and statute of limitations, holding that a defendant who withdraws a negotiated plea cannot rely on these protections to escape prosecution.


Holding

A defendant who withdraws a plea bargain cannot invoke speedy trial, double jeopardy, or statute of limitations protections to bar the State from prosecuting the underlying charge. When a defendant repudiates a plea bargain by withdrawing the plea, the relationship between defendant and State is restored to what it was before the bargain, and the defendant cannot thwart the State's opportunity to prosecute by negotiating a plea and then obtaining a favorable ruling on the withdrawal motion.


Headnotes

[1] When a defendant withdraws a plea or successfully challenges a conviction on appeal, double jeopardy does not bar restoration of the prosecution to its pre-plea status.

[2] A defendant who successfully moves to withdraw a plea cannot claim a violation of speedy trial rights when the prosecution is restored to its pre-plea status.

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Key Quotes

“when defendant repudiates the plea bargain, either by withdrawing the plea or by successfully challenging his conviction on appeal, there is no double jeopardy (or other) obstacle to restoring the relationship between defendant and State as it existed prior to the defunct bargain.”

Establishes the fundamental principle that plea withdrawal restores pre-bargain status and does not trigger double jeopardy protection

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Facts & Procedural History

Kehn had entered into a plea bargain on a DUI charge but subsequently moved to withdraw his plea. After successfully obtaining withdrawal of the plea,…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioner Michael Kehn seeks certiorari review of an order entered by the Lake County Circuit Court, while sitting in its appellate capacity, which denied Petitioner’s petition for writ of prohibition. In short, Kehn sought to prohibit his prosecution on a D.U.I. charge after successfully moving to withdraw his plea to the charge. Kehn argues that the prosecution at this juncture will violate his speedy trial and double jeopardy rights, and that further prosecution is barred by the statute of limitations. As the lower court correctly determined, these arguments lack merit. See, e.g., U.S. v. Kim, 884 F.2d 189, 191 (5th Cir.1989) (“[W]hen defendant repudiates the plea bargain, either by withdrawing the plea or by successfully challenging his conviction on appeal, there is no double jeopardy (or other) obstacle to restoring the relationship between defendant and State as it existed prior to the defunct bargain.”) (quoting Fransaw v. Lynaugh, *641810 F.2d 518, 524-25 (5th Cir.1987)); Taylor v. Kincheloe, 920 F.2d 599, 602 n. 2 (9th Cir.1990) (“The general rule is that if a defendant has his plea to a certain count set aside on appeal, double jeopardy is not implicated by his subsequently being recharged and tried on that same count.”); Geiger v. State, 532 So.2d 1298, 1301 (Fla. 2d DCA 1988) (“The reinstatement of the original informations will not frustrate the purpose of the limitations period in that Geiger had notice that she may be required to stand trial on the charges if she successfully abrogated the plea agreement. Further, because this Court has voided the plea bargain, Geiger must be returned to the position that existed before the bargain. Likewise, there is not a violation of the speedy trial rule. This court’s direction to the trial judge to permit Geiger to withdraw her pleas causes this case to be outside the ambit of the speedy trial rule. The dismissal of these charges clearly was a part of the ‘entire package’ of the negotiated plea. Geiger cannot thwart the state’s opportunity to try her on these charges by negotiating a plea bargain and then obtaining a ruling permitting her to withdraw the pleas on some of the charges after the speedy trial time had expired on the dismissed charges.”) (citations omitted); State v. Rosenfeld, 467 So.2d 731, 733 (Fla. 3d DCA 1985) (“The defendant cannot defeat the state’s opportunity to charge her by negotiating a plea and then obtaining a favorable ruling, after the speedy trial time had passed, on a motion to withdraw the plea which is filed shortly before the speedy trial time has run.”). Accordingly, we deny the petition.

PETITION DENIED.

MONACO, C.J., LAWSON and EVANDER, JJ., concur.


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Citator

Cited By

  • Small v. State, 249 So. 3d 675 (Fla. 2d DCA 2018)
  • …as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. trial claim under the circumstances where he pled guilty and was allowed to withdraw his plea. Response at 39-40. See Kehn v. State, 44 So. 3d 640 (Fla. 5th DCA 2010) (per curiam) (finding no violation of the speedy trial rule as the petitioner was allowed to withdraw her pleas which caused the case to be outside the ambit of the rule). Petitioner’s Sixth Amendment rights were not violated…

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