THE STATE OF FLORIDA, APPELLANT,
v.
JACK SOKOL, APPELLEE
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The State appealed an order quashing a criminal information for bribery after the trial court found that the State's entry of nolle prosequi violated the defendant's right to a speedy trial. The Florida District Court of Appeal reversed, holding that the State has an absolute right to enter a nolle prosequi prior to the jury being sworn, and that this right was not abrogated by the U.S. Supreme Court's decision in Klopfer v. North Carolina.
The State has a long-settled right under Florida law to enter a nolle prosequi at any time prior to the jury being sworn. This right was not abrogated by Klopfer v. North Carolina, which is distinguishable because in that case the defendant remained subject to prosecution, whereas here the defendant was released from prosecution under the original information and the State had a two-year statute of limitations within which to refile.
“There can be no doubt that under the common law the Prosecuting Attorney controlled the entry of a nolle prosequi, up to the time that the jury is sworn to try the cause.”
Establishes the foundational common law principle that the State has the right to enter nolle prosequi before the jury is sworn, which Florida has adopted.
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Join FLexlaw to unlock all legal intelligenceOn September 27, 1966, Sokol was charged by information with bribery. On January 23, 1967, the case came to trial, and after voir dire, both parties a…
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The State seeks review of an order quashing an information. The record on appeal reveals the following:
On September 27, 1966, the appellee was charged by information with the crime of bribery. The case came on for trial on January 23, 1967. After voir dire, the State tendered the jury and the appellee accepted the jury. However, before the jury was sworn and over appellee’s objection the appellant announced a nolle prosequi. On February 1, 1967, the appellant filed another information charging the appellee with the identical offense with respect to all substantive allegations of date, time, and place. The appellee moved to quash the information. After hearing on the motion, the trial court found the action of the appellant violated appellee’s right to a speedy trial upon the authority of Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Balikes v. Speleos, Fla.App.1965, 173 So.2d 735. As a result, the trial court entered the order appealed herein quashing the information and discharging the appellee.
The State contends error, urging that it has a right to take a nolle prosequi at any time prior to the jury being sworn. We agree, and reverse. It has long been the settled law in this jurisdiction that the State has a right to take a nolle prosequi at any time prior to the jury being sworn. The Supreme Court of Florida said, in Wilson v. Renfroe, Fla.1956, 91 So.2d 857,
“There can be no doubt that under the common law the Prosecuting Attorney controlled the entry of a nolle prosequi, up to the time that the jury is sworn to *157try the cause. The words ‘nolle prosequi’ are a Latin expression which translated literally mean ‘to be unwilling to prosecute’. Under the common law of England prosecution in criminal cases were controlled by the Attorney General and he alone had the exclusive discretion to decide whether prosecution should be discontinued prior to the inception of jeopardy. In the absence of statute, the common law continues to be in force in most of the states of this country. Florida has adopted no statute on the subject. 14 Am.Jur., Criminal Law, Sec. 296 et seq.; State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 69 A.L.R. 233; State ex rel. Butler v. Moise, 48 La.Ann. 109, 18 So. 943, 35 L.R.A. 701. * * *”
******
This principle has not been abrogated by the United States Supreme Court opinion in Klopfer v. State of North Carolina, supra. The cited case is clearly distinguishable from the instant case. In the cited case, although the defendant was released from custody he was still subject to prosecution on the original information. In the instant case, upon a nolle prosequi, the defendant was not only released from custody but he was released from prosecution under the original information. Under the applicable statute of limitation, the State had two years from the date of the commission of the alleged crime within which to file an information. § 932.05, Fla.Stat., F.S.A.
■ Reliance on the case of Balikes v. Spele-os, supra, was misplaced. The original order discharging the defendant in that cause was a final order of dismissal in the defendant’s favor.
Therefore, for the reasons above stated, the order quashing the information, here under review, be and the same is hereby reversed for further proceedings in the trial court not inconsistent herewith.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Logan Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982)…ourt nor we can employ Brown to defeat the agreement any more than the trial court or we are empowered to interfere with the State’s right to enter a nolle prosequi to any prosecution. See Wilson v. Renfroe, 91 So. 2d 857 (Fla.1956); State v. Sokol, 208 So. 2d 156 (Fla. 3d DCA 1968). . Thus, were we to decide such an appeal in favor of the defendant, we would reverse the judgment of conviction and, based on the State’s agreement, order the defendant discharged. . The proposed amendment to Federal Rule of Cr…
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State v. Braden, 375 So. 2d 49 (Fla. 2d DCA 1979)…l contending that the dismissal with prejudice of the first information was a nullity because it followed a nolle prosse of that information by the state. A nolle prosse may be filed at any time prior to the swearing in of the jury. State v. Sokol, 208 So. 2d 156 (Fla.3d DCA 1968). Permission of the trial court is not necessary, because the decision to file a nolle prosse is within the sole discretion of the state. State v. Wells, 277 So. 2d 543 (Fla.3d DCA 1973). Since there can be no doubt that the nolle p…
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Allied Fid. Ins. Co. v. State, 408 So. 2d 756 (Fla. 3d DCA 1982)…ould discharge the surety,3 see All Florida Surety Company v. State, 78 So. 2d 89 (Fla.1955); State v. McLeod, 31 Idaho 536, 173 P. 496 (1918); State v. Veterans of Foreign Wars Post 1856, 223 Iowa 1146, 274 N.W. 916 (1937); see also State v. Sokol, 208 So. 2d 156 (Fla. 3d DCA 1968), it is critical to its contention that a “no action” is ineffective to discharge the surety, that a “no action,” unlike a nolle prosequi, does not release the defendant. It is far from convincing for the State to attempt to distin…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Klopfer v. North Carolina, 386 U.S. 213 (U.S. 1967)
- F. K. G. Co., Inc. v. Keys Bottled GAS Co., 91 So. 2d 857 (Fla. 1957)
- Wilson v. Renfroe, 91 So. 2d 857 (Fla. 1956)
- The Honorable Thomas N. Balikes v. Speleos, 173 So. 2d 735 (Fla. 3d DCA 1965)