STATE OF FLORIDA, APPELLANT,
v.
LOUIS A. MERCADO, APPELLEE
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The State appealed a trial court's order barring retrial of a defendant for capital sexual battery after a mistrial. The trial court had based its dismissal on a finding that the State intentionally disregarded a court order regarding redaction of a controlled telephone call, constituting prosecutorial misconduct intended to goad the defendant into moving for mistrial. The appellate court reversed, finding the record did not support the trial court's finding of prosecutorial intent.
The appellate court held that the trial court's findings that the State intentionally sought to provoke a mistrial were not supported by the evidence in the record. Absent a clear showing of prosecutorial intent to goad the defendant into moving for mistrial, double jeopardy does not bar retrial following a mistrial declared on the defendant's motion.
[1] Retrial is generally permissible after a mistrial unless the prosecution's misconduct was specifically intended to provoke the defendant into moving for a mistrial.
[2] Prosecutorial conduct that constitutes harassment or overreaching, even if sufficient to justify a mistrial, does not bar retrial unless there was a specific intent to pr…
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Join FLexlaw to unlock all legal intelligence“A narrow exception exists when the prosecution's misconduct was intended to provoke the defendant into moving for a mistrial.”
Establishes the legal standard for when prosecutorial misconduct bars retrial after a mistrial—intent to provoke must be present.
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Join FLexlaw to unlock all legal intelligenceFollowing a mistrial in a capital sexual battery case, the trial court entered an order prohibiting retrial. The trial court's dismissal was based on …
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Following a mistrial, the State of Florida appeals an order prohibiting the retrial of Louis A. Mercado for capital sexual battery. The trial court barred a retrial based on the court’s finding that the State intentionally disregarded a court order to redact certain portions of a controlled telephone call between Mr. Mercado and law enforcement. The State argues that the trial court erred in dismissing the charge because the record fails to demonstrate any prosecutorial intent to goad Mr. Mercado into moving for a mistrial. We agree and reverse.
It would serve no useful purpose to recount the details of this proceeding. Suffice it to say that neither the prosecutor nor judge is likely to wish to repeat their actions during this trial.1 Generally, when a trial court declares a mistrial on the defendant’s motion or with his consent, or upon a manifest necessity, double jeopardy does not bar a retrial. Turner v. State, 37 So.3d 212, 221 (Fla.2010); Fuente v. State, 549 So.2d 652, 657 (Fla.1989); Rutherford v. State, 545 So.2d 853, 855 (Fla.1989). A narrow exception exists *606when the prosecution’s misconduct was intended to provoke the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2088, 72 L.Ed.2d 416 (1982); Fuente, 549 So.2d at 658; Rutherford, 545 So.2d at 855. Further, prosecutorial conduct that might be viewed as harassment or overreaching sufficient to justify a mistrial, is insufficient to bar a retrial absent such an intent. Kennedy, 456 U.S. at 675-76, 102 S.Ct. 2083. “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676; see also Gore v. State, 784 So.2d 418, 427 (Fla.2001); State v. Gaines, 770 So.2d 1221, 1228 (Fla.2000). Thus, absent improper governmental action intended to provoke the defendant’s mistrial request and subject the defendant to the substantial burden imposed by multiple prosecutions, the defendant waives his or her constitutional double jeopardy rights where the defendant moves for a mistrial, consents to one, or by his or her conduct causes one. Gaines, 770 So.2d at 1228; see Kennedy, 456 U.S. at 672, 102 S.Ct. 2083; United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).
The sole issue we address here is whether the State’s conduct was intended to provoke Mr. Mercado into requesting a mistrial. We conclude that the trial court’s findings are not supported by the evidence. We reverse for a new trial.
REVERSED and REMANDED.
PALMER, ORFINGER and BERGER, JJ., concur.
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Mercado v. Sec'y, Fla. Dep't of Corr., 119 F.4th 1261 (11th Cir. 2024)…te's brief and that he remained unaware that he was Mercado's appellate counsel. So no one filed an appellee's brief for Mercado in response to the State's appeal. The Florida appellate court reversed and remanded for a re- trial. State v. Mercado, 121 So. 3d 604, 606 (Fla. Dist. Ct. App. 2013). The appellate court determined that the trial court's findings of prosecutorial intent to procure a mistrial were “not supported by the evidence." Id. at 605–06. Following the appellate court's ruling, Stoumbos—in hi…1 / 2
Authorities Cited
- United States v. Dinitz, 424 U.S. 600 (U.S. 1976)
- Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982)
- Gore v. State, 784 So. 2d 418 (Fla. 2001)
- State v. Gaines, 770 So. 2d 1221 (Fla. 2000)
- Rutherford v. State, 545 So. 2d 853 (Fla. 1989)
- Fuente v. State, 549 So. 2d 652 (Fla. 1989)
- Turner v. State, 37 So. 3d 212 (Fla. 2010)