THE STATE OF FLORIDA, APPELLANT,
v.
ROBERT CLEVELAND MALONE, APPELLEE
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The State of Florida appealed the quashing of a criminal information charging Robert Malone with maintaining a gambling room under state statute, after he was previously acquitted of a related municipal ordinance violation. The court reversed, holding that prosecution under both a municipal ordinance and state statute for the same conduct does not constitute double jeopardy.
The court held that the mere fact that the same set of facts supports a charge under both a municipal ordinance and a state statute does not constitute double jeopardy. A defendant acquitted of violating a municipal ordinance may be prosecuted under the corresponding state statute for the same conduct.
“The mere fact that the same set of facts will support a charge under a municipal ordinance, as well as a charge of violation of a State statute, does not constitute double jeopardy.”
The court's primary holding that identical underlying facts do not trigger double jeopardy protections when charged under different legal authorities.
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Join FLexlaw to unlock all legal intelligenceOn March 17, 1967, Malone was arrested by Miami police and charged with violating a city ordinance prohibiting operation of a gambling room. He was tr…
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The State seeks review of an order quashing the information filed in the criminal court, on the grounds of former jeopardy. From the record, it appears that on March 17, 1967 the appellee was *897arrested by officers of the City of Miami and charged with violation of City Ordinance Ch. 2702, § 19-3, prohibiting operation of a gambling room. The appellee was tried by the Municipal Court in and for the City of Miami, and acquitted. Thereafter, on April 7, 1967, an information charging appellee with maintaining a gambling room in violation of § 849.01, Fla.Stat., F.S.A., was filed. This information was based on the same set of facts and circumstances giving rise to the arrest of March 17, 1967, and the prosecution in the municipal court. Thereafter, the defendant pleaded former jeopardy. The trial court quashed the information, finding that the filing of same constituted double jeopardy in light of the proceedings in the municipal court. We reverse.
The mere fact that the same set of facts will support a charge under a municipal ordinance, as well as a charge of violation of a State statute, does not constitute double jeopardy. State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697; Waller v. State, Fla.App.1968, 213 So.2d 623; Hilliard v. City of Gainesville, Fla. 1968, 213 So.2d 689. Neither does the fact that the City of Miami had adopted, by ordinance, the State criminal statute and prosecuted for a violation of the ordinance. Orr v. Quigg, 135 Fla. 653, 185 So. 726; Cooper v. City of Miami, 160 Fla. 656, 36 So.2d 195; State ex rel. McFarland v. Roberts, Fla.1954, 74 So.2d 88; § 165.191, Fla.Stat., F.S.A., 9 Fla.Jur., Criminal Law, § 216; 23 Fla.Jur., Municipal Corporations, §§ 84, 94, 110.
The appellee’s point, that because this court previously dismissed an appeal from an oral ruling of the trial court precludes review of the order in the instant action, is without merit. The dismissal of the earlier appeal was on the ground that there was no jurisdiction in this court. State v. Shedaker, Fla.App.1966, 190 So.2d 429; State v. Malone, Fla.App.1968, 215 So.2d 892; Jenkins v. Lyles, Fla.1969, 223 So.2d 740. The effect of this ruling was to leave the matter still pending in the trial court until such time as a formal written order was duty entered.
Therefore, for the reasons above stated, the order here under review be and the same is hereby reversed, with directions to reinstate the information against the ap-pellee.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Waller v. State, 270 So. 2d 26 (Fla. 2d DCA 1972)…1899, 41 Fla. 547, 26 So. 713; Southworth v. State, 1929, 98 Fla. 1184, 125 So. 345; and State v. Bowden, 1944, 154 Fla. 511, 18 So. 2d 478. With specific reference to violations of an ordinance and of a State law, see State v. Malone, Fla.App.1969, 227 So. 2d 896, and Smith v. State, Fla.App.1971, 251 So. 2d 153. And lastly, we admit that if the city conviction here had been upon charges included within the State charge of larceny the State prosecution would have been barred by double jeopardy. It was in eff…
Authorities Cited
- State of Fla. Ex rel. Daisy Wilson v. Quigg, 154 Fla. 348 (Fla. 1944)
- Hilliard v. City OF Gainesville, 213 So. 2d 689 (Fla. 1968)
- Cooper v. The City of Miami, 160 Fla. 656 (Fla. 1948)
- Waller v. State, 213 So. 2d 623 (Fla. 2d DCA 1968)
- Eli S. Jenkins v. Hon. Woody A. Lyles, 223 So. 2d 740 (Fla. 1969)
- Orr v. Quigg, 135 Fla. 653 (Fla. 1938)
- State v. Shedaker, 190 So. 2d 429 (Fla. 3d DCA 1966)
- State ex rel. McFARLAND v. Roberts, 74 So. 2d 88 (Fla. 1954)
- State v. Malone, 215 So. 2d 892 (Fla. 3d DCA 1968)