THEODORE R. ROBINSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robinson appeals the denial of his motion to vacate a sentence for felonious firearm possession, claiming double jeopardy after being prosecuted twice for the same conduct in municipal and circuit courts. The court affirmed the denial, holding that Robinson waived his double jeopardy defense by failing to raise it at arraignment or during trial proceedings.
The court held that Robinson waived his double jeopardy defense by failing to raise it either before or after arraignment as required by Florida Rule of Criminal Procedure 1.190(b)(1). The court rejected Robinson's claim of ineffective assistance of counsel, finding the law on double jeopardy from municipal and state prosecutions was well-settled at the time of his plea and conviction.
[1] A defense of former jeopardy must be raised by a motion to dismiss under Florida Rule of Criminal Procedure 1.190(b)(1).
[2] Failure to raise the issue of former jeopardy by motion to dismiss constitutes a waiver of that defense.
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Join FLexlaw to unlock all legal intelligence“Rule 1.190(b) (1), Florida Rules of Criminal Procedure, provides that all defenses available to a defendant, other than not guilty, shall be placed before the court by a motion to dismiss. Expressly included in the defenses which must be so introduced is the plea of former jeopardy.”
Establishes the procedural requirement to raise double jeopardy defenses and how they must be introduced
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Join FLexlaw to unlock all legal intelligenceRobinson was arrested in Clearwater in March 1969 for possession of a twenty-five caliber firearm and pled guilty in Municipal Court, receiving a sent…
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This is an appeal from a denial of a Criminal Rule 1.850, 33 F.S.A. Motion to Vacate and Set Aside Sentence and Judgment. Appellant was arrested in Clear-water, Florida, for possession of a twenty-five caliber firearm in March of 1969. Upon entering a plea of guilty to the offense charged, appellant was sentenced by the Municipal Court of Clearwater. Approximately five months later, in August of 1969, a direct information was filed by the state attorney charging appellant with felonious possession of a firearm. It is unquestioned that the information related to the same actions for which defendant had already been sentenced in Municipal Court.
Appellant, represented by the Public Defender, entered a plea of guilty to the information in the circuit court. He was thereupon sentenced in October of 1969 to a term of six months to two years, less time already spent in the Clearwater City Jail. At no time during the aforementioned proceedings did appellant raise the issue of double jeopardy under the State or Federal Constitutions.
Appellant’s essential contention on appeal is that the recent decision of the United States Supreme Court in Waller v. State, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), is retroactive and therefore renders his sentence illegal. Although it is the opinion of this court that the Waller decision is not retroactive, we need not consider this point in order to decide this appeal.
Rule 1.190(b) (1), Florida Rules of Criminal Procedure, provides that all defenses available to a defendant, other than not guilty, shall be placed before the court by a motion to dismiss. Expressly included in the defenses which must be so introduced is the plea of former jeopardy. Subsection (c) of Rule 1.190, supra, permits the court to entertain a motion to dismiss, predicated upon former jeopardy, at any time during the trial proceedings, not just prior to or at arraignment as it dictates for most other defenses. Appellant’s failure to raise the issue of former jeopardy, either before or after arraignment, amounts to a waiver of that defense. Cf. Peel v. State, 150 So.2d 281 (Fla.App.1963), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279; Champlin v. State, 122 So.2d 412 (Fla.App.1960).
Apparently anticipating our position on the issue of waiver, appellant argues that his counsel below evidenced incompetency in failing to preserve the issue of double jeopardy by proper motion because “[a] reasonably well-informed criminal defense lawyer in Pinellas County should have known that the [Waller case (which arose in Pinellas County) ] was *284* * * before the Supreme Court. * * * ” This contention is wholly without merit insofar as it relates to the issue of competency. The law of Florida on the issue of double jeopardy arising from municipal and state prosecutions of the nature involved in this appeal was well settled at the time of appellant’s plea and conviction. Hilliard v. City of Gainesville, 213 So.2d 689 (Fla.1968); Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894). This court cannot require that court-appointed counsel serve clients as advocates, counselors, and soothsayers.
The order appealed is
Affirmed.
PIERCE, J., concurs.
McNULTY, J., concurs in conclusion only.
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Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)…(Fla. 5th DCA 1982). .See Bell v. State, 262 So. 2d 244 (Fla. 4th DCA 1972), cert. denied, 265 So. 2d 50 (Fla.1972); Sitiero v. State, 248 So. 2d 219 (Fla. 4th DCA 1971); Robinson v. Wainwright, 240 So. 2d 65 (Fla. 2d DCA 1970); Robinson v. State, 239 So. 2d 282 (Fla. 2d DCA 1970).…1 / 2
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Suiero v. State, 248 So. 2d 219 (Fla. 4th DCA 1971)…r proceedings.1 Moreover, the record on appeal reflects the appellant’s failure to raise the issue of double jeopardy or collateral estoppel in the trial court below. Such failure amounts to a waiver of that defense. Robinson v. State, Fla.App.1970, 239 So. 2d 282, and Robinson v. Wainwright, Fla.App.1970, 240 So. 2d 65. We observe, however, that even had this defense been properly raised, based upon the weight of authority, the contentions of the appellant are without merit. State ex rel. Larkins v. Lewis, F…
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Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980)…1241 (Fla. 3d DCA 1979). Affirmed in part; reversed in part. . Count III, charging grand larceny, was dismissed. . Davis’ plea of guilty to the offense of possession and display of a firearm waives any claim of double jeopardy, Robinson v. State, 239 So. 2d 282 (Fla. 2d DCA 1970); Peel v. State, 150 So. 2d 281 (Fla.1963), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1963). Were the claim not waived, he would be entitled to have the judgment of conviction on Count II set aside. See State v. Pi…
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
- Waller v. Florida, 397 U.S. 387 (U.S. 1970)
- Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963)
- Thelsen v. McDavid, 34 Fla. 440 (Fla. 1894)
- Hilliard v. City OF Gainesville, 213 So. 2d 689 (Fla. 1968)
- Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960)
- Fair v. Fair, 380 U.S. 986 (U.S. 1965)
- Morphew v. Indiana, 380 U.S. 986 (U.S. 1965)