STATE EX REL. CHARLES C. JAMES, RELATOR,
v.
GENE WILLIAMS, JUDGE, DIVISION A, CRIMINAL COURT OF RECORD IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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The State charged James with conspiracy to commit abortion and attempted abortion. At trial, after a jury was impaneled, the State elected to proceed only on the attempted abortion count, and James was acquitted. The State then sought to try him on the conspiracy count. James sought prohibition, claiming double jeopardy protections barred retrial after he had been placed in jeopardy on both counts.
James is protected by the constitutional prohibition against double jeopardy and prohibition should be granted. Once a defendant is placed in jeopardy on a count, the State cannot retry him on that count after an acquittal on another count arising from the same information, even if the defendant made a motion requiring the State to elect which count to proceed on.
“It appears that the State not having made its election until after the jury was impanelled and sworn, the relator was placed in jeopardy upon both counts during the original trial.”
Establishes the critical fact that jeopardy attached to both counts, triggering double jeopardy protections.
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Join FLexlaw to unlock all legal intelligenceJames was charged in an information filed June 21, 1962, with two counts: conspiracy to commit abortion (Count I) and attempted abortion (Count II). A…
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This is an original proceeding in prohibition, instituted by the relator, seeking to prohibit the respondent from proceeding to try him upon Count I of an. information charging him with a conspiracy to commit abortion. The grounds for seeking this extraordinary relief is a violation of the constitutional prohibition against double jeopardy. See: Section 12, Declaration of Rights, Florida Constitution, F.S.A.
The facts giving rise to this situation, as revealed by the record, are the following: The relator had an information filed against him on June 21, 1962, containing two counts. The first count was a conspiracy to commit abortion, and the second count was attempted abortion. The cause came on for trial and, subsequent to the jury being im-panelled and sworn the State, upon motion being made, elected to proceed only upon Count II. Thereafter, the jury returned the verdict in favor of the relator. Subsequently, the relator was noticed for trial upon Count I, to wit: conspiracy to commit abortion. Upon being advised of the trial upon Count I, he instituted these original proceedings in the nature of a prohibition.
It appears that the State not having made its election until after the jury was impanelled and sworn, the relator was placed in jeopardy upon both counts during the . original trial. See: Brown v. State, 130 Fla. 479, 178 So. 153; Mead v. State, Fla.App.1959, 110 So.2d 504. It appears that prohibition has been recognized as an appropriate proceeding to urge the constitutional right against double jeopardy. See: State ex rel. Manning v. Himes, 153 Fla. 711, 15 So.2d 613; State ex rel. Williams v. Grayson, Fla.1956, 90 So.2d 710; State ex rel. Hicks v. McCrary, Fla.App.1962, 141 So.2d 323. The relator having once been put in jeopardy on the first count, the rule nisi in prohibition should be made absolute, and the respondent prohibited from proceeding to try the relator a second time. The respondent urges that the relator, by making the motion requiring the State to elect, waived his right to double jeopardy upon the abandoned first count and, therefore, is estopped to urge this constitutional right. We find upon this record that this contention is without merit. See: State v. Rush, 138 Kan. 465, 26 P.2d 581.
*875Therefore, it is the opinion of this court that the rule nisi, heretofore issued in prohibition, should be made absolute. We assume, because of the views expressed herein, that it will be unnecessary to formally issue the writ.
Cases With Similar Vibessemantic neighbors from the corpus
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Gonzalo R. Reyes v. Honorable Richard Kelly, 204 So. 2d 534 (Fla. 2d DCA 1967)…efendant, prohibition in this Court would be an appropriate remedy. State ex rel. Alcala v. Grayson, 1945, 156 Fla. 435, 23 So. 2d 484; State ex rel. Manning v. Himes, 1943, 153 Fla. 711, 15 So. 2d 613; State ex rel. James v. Williams, Fla.App.1964, 164 So. 2d 873. But the foregoing postulates are predicated upon one fundamental premise, lacking here, namely, that the accused was “in jeopardy” in the Constitutional sense, when he merely pleaded guilty. A judgment or its equivalent is indispensable, and that…
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State of Fla. ex rel. Kenneth J. Miller v. The Honorable William A. Patterson, 284 So. 2d 9 (Fla. 2d DCA 1973)…of prohibition. HOBSON, A. C. J., and BOARDMAN, J., concur. . See, State ex rel. Manning v. Himes (1943), 153 Fla. 711, 15 So. 2d 613; State ex rel. Williams v. Grayson (Fla.1956), 90 So. 2d 710; and State ex rel. James v. Williams (Fla.App.1964), 164 So. 2d 873. . See, Section 6, Art. Y, Constitution of Florida 1973, F.S.A. . See, Coleman v. State ex rel. Jackson (1940), 140 Fla. 772, 193 So. 84. . See, e. g., State v. Stiefel (Fla.1972), 256 So. 2d 581. . See, e. g., Ray v. State (Fla.1969), 231 So. 2…
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State of Fla. ex rel. Jon Anderberg v. Honorable David U. Strawn, 307 So. 2d 213 (Fla. 4th DCA 1975)…er.” (141 So. 2d at 324) (Footnotes omitted) Finally, there are two Florida cases which broadly state prohibition is available for bringing double jeopardy claims generally before a court of review. In State ex rel. James v. Williams, Fla.App.1964, 164 So. 2d 873, the State elected to drop one count of its information against relator after a jury had been impanelled and sworn. When, after relator’s acquittal on the remaining charges, the State sought to re-initiate trial on the count that had been dropped, r…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leone Berdina Rosacker v. Rosacker, 90 So. 2d 710 (Fla. 1956)
- Brown v. State, 130 Fla. 479 (Fla. 1938)
- Cockery v. Ashkenazy, 90 So. 2d 710 (Fla. 1956)
- State v. Himes, 153 Fla. 711 (Fla. 1943)
- State of Fla. ex rel. Lynwood Hicks & Buford Waldroff v. Honorable Robert L. McCRARY, Jr., 141 So. 2d 323 (Fla. 1st DCA 1962)
- Mead v. State, 110 So. 2d 504 (Fla. 2d DCA 1959)