STATE OF FLORIDA EX REL. KENNETH DAWALT, PETITIONER,
v.
HONORABLE JACK M. TURNER, AS JUDGE OF THE CRIMINAL COURT OF RECORD IN AND FOR DADE COUNTY, FLORIDA, RESPONDENTS
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A defendant sought a writ of prohibition to prevent retrial on a third information, claiming double jeopardy and res judicata after his initial conviction was reversed for a defective information and a second information was quashed. The court denied prohibition, holding that no jeopardy attached from the defective first information or the quashed second information, and that res judicata defenses must be asserted at trial, not through prohibition.
The court held that no double jeopardy exists because the first conviction was reversed for a defective information (from which no valid jeopardy could attach), and the issuance and quashing of the second information without more did not result in jeopardy. The res judicata defense, if applicable, must be asserted and determined at trial and is not a valid basis for a writ of prohibition.
“where an information is defective in form or substance so that a valid judgment of conviction may not be entered thereon, legal jeopardy does not result”
Establishes that defective informations do not create legal jeopardy, thus no double jeopardy protection applies
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Join FLexlaw to unlock all legal intelligencePetitioner Dawalt was initially charged with entry of a building without breaking with intent to commit petit larceny. He was convicted on this charge…
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This is an original proceeding in prohibition directed to the criminal court of record of Dade County. The suggestion discloses that previously petitioner was charged with commission of a felony, on an information which alleged entry of a building without breaking with intent to commit petit larceny; that he was convicted thereon and appealed; and that this court reversed the conviction.1
Thereafter a corrected information was filed in the original case in the criminal court. A motion to quash the second information was granted. Later, a third information was issued, similar in form to the second, and it served as a basis for the present prosecution of the defendant in the criminal court of record. The suggestion for writ of prohibition discloses the cause had reached the stage in the criminal court where it was set for trial on September 2, 1964, the date the prohibition proceeding was commenced here.2
Relying on those facts the petitioner contended in the suggestion that he had been placed in jeopardy when tried earlier and by issuance of the second information, and therefore that the present case based on the third information is subjecting him to double jeopardy; and (2) that the dismissal of the second information, which was similar in form to the present information, was res judicata so as to bar the present action in the criminal court of record.
A rule nisi in prohibition was issued by this court, to which the respondent filed a motion to quash. After hearing thereon we conclude that the motion to quash should be granted and the application for prohibition denied.
It has been recognized by the courts of Florida that prohibition is an appropriate remedy through which to assert the defense of double jeopardy.3 However, it is apparent on the face of the suggestion for prohibition that there is no valid basis to claim double jeopardy in this instance. This is so because while the first trial went to a conclusion and was adverse to the defendant, the judgment was reversed for a defective information, and where an information is defective in form or substance so that a valid judgment of conviction may not be entered thereon, legal jeopardy does not result.4 Nor did the issuance and quashal, without more, of the second information, result in jeopardy attaching.5 The petitioner’s contention regarding res judicata is unsound. That defense, if pres*774ent, may be asserted and determined in the trial court, but is not acceptable as a basis for writ of prohibition.6
Accordingly, prohibition is denied and the suggestion dismissed.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Seay v. State, 286 So. 2d 532 (Fla. 1973)…by a grand jury in violation of their constitutional rights, the court should be directed to vacate the adjudications of guilt and sentences, and that further proceedings in these cases be in accordance with applicable law. Compare State v. Turner, 168 So. 2d 772 (Fla.App.1964); Burns v. State, 89 Fla. 494, 104 So. 783 (Fla.1925). [*545] It appears clear to me the Appellants were arbitrarily denied the right and opportunity to perfect their challenge to the Grand Jury for the reasons explicated herein; that…
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State of Fla. ex rel. v. Honorable Murray Goodman, 254 So. 2d 55 (Fla. 3d DCA 1971)…SWANN, Chief Judge (dissenting). We have held that a writ of prohibition would not issue on a claim of res judicata as this issue could properly be raised and determined in the trial court. State ex rel. Dawalt v. Turner, Fla.App. 1964, 168 So. 2d 772. See also Robinson v. United States, 284 F. 2d 775 (5th Cir. 1960). The record before us does not show that any demand for speedy trial was ever made by Neville or that the issue of a speedy trial was ever raised or ruled upon in the trial court. T…
Authorities Cited (14 total)
- Dickoff v. Dewell, 152 Fla. 240 (Fla. 1942)
- State of Fla. ex rel. William H. Reynolds as Comptroller of the State of Fla. v. White, 40 Fla. 297 (Fla. 1898)
- Leone Berdina Rosacker v. Rosacker, 90 So. 2d 710 (Fla. 1956)
- State v. Himes, 134 Fla. 675 (Fla. 1938)
- Burnes v. State, 89 Fla. 494 (Fla. 1925)
- Cockery v. Ashkenazy, 90 So. 2d 710 (Fla. 1956)
- State v. Himes, 153 Fla. 711 (Fla. 1943)
- Kennick v. State, 107 So. 2d 59 (Fla. 1st DCA 1958)
- The State of Fla. ex rel. Earl William Paluska, Jr. v. The Honorable Jos. S. White, 162 So. 2d 697 (Fla. 2d DCA 1964)
- State of Fla. ex rel. Joseph P. Wheeler & Mack Reid v. Cooper, 157 So. 2d 875 (Fla. 2d DCA 1963)