STATE EX REL. FRANK J. RYAN
v.
HON. A. D. MCNEILL, JUDGE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, CLAY COUNTY
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This case concerns whether discharging a jury before a verdict constitutes double jeopardy. The court held that discharging the jury without the defendant's consent or a manifest necessity to do so does amount to an acquittal, barring a retrial.
Yes, the discharge of a jury under such circumstances amounts to an acquittal, and a subsequent retrial would violate the prohibition against double jeopardy.
“In our view, the question was answered in the affirmative by this Court in Padgett v. State, 117 Fla. 75, 157 So. 186, and State ex rel. Dato, et al., v. Himes, 134 Fla. 675, 184 So. 244; Allen v. State, 52 Fla. 1, 41 So. 593.”
This quote establishes the legal precedent relied upon by the court to answer the double jeopardy question.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant was informed against for violating the Florida Securities Act. After jury selection and opening statements, the State moved to discharge…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Securities And Investor Protection Act cases and more on FLexlaw
Relator was informed against for violating the Florida Securities Act, the information being in three counts based on a single transaction. A motion to quash was sustained as to two counts, a motion for continuance was denied, and the case was called for trial on the third count. Each juror was questioned at length with reference to facts necessary for acquittal and conviction and the information was read to him. The State exercised four peremptory challenges and the defendant exercised two. The panel was completed, accepted, and sworn. The State attorney explained the case, related the facts relied on for conviction, and read the information to the panel.
At this period in the trial before beginning to take evidence, the State attorney moved to discharge the jury on the sole ground that the defendant had not been arraigned nor pleaded to the information. Defendant’s counsel did not resist the motion but stated that he did not waive any right he had. He excepted to the discharge. The State attorney then had defendant arraigned, to which he ob*305jected but his objection was overruled and date for new trial was set for the following day. Defendant filed plea of former jeopardy, alleging that the discharge of the jury amounted to his acquittal and the new trial would constitute second jeopardy. A demurrer to this plea was sustained.
On these facts, petition for writ of prohibition was filed in this Court and a rule nisi was issued. Respondent has moved to discharge the rule nisi. The only question necessary to answer is whether or not the plea of second jeopardy was well grounded.
In our view, the question was answered in the affirmative by this Court in Padgett v. State, 117 Fla. 75, 157 So. 186, and State ex rel. Dato, et al., v. Himes, 134 Fla. 675, 184 So. 244; Allen v. State, 52 Fla. 1, 41 So. 593.
So the rule absolute in prohibition must be and is hereby issued.
It is so ordered.
Brown, Buford and Chapman, J. J., concur.
Whitfield and Thomas, J. J., dissent.
(dissenting).- — In State ex rel. v. Himes, Judge, 134 Fla. 675, 184 So. 244, there would have been second jeopardy if another trial had occurred because a prosecution for the same offense had been abandoned in the midst of a trial before another judge and a jury duly sworn and empanelled to try the issue made upon arraignment and pleas as duly shown in the record of the case.
The first headnote in the Himes case is a quotation in the opinion taken from Allen v. State, 52 Fla. 1, 41 So. 593, 120 Am. St. 188, 10 Ann. Cas. 1085. Such headnote presupposes an arraignment and plea before the jury was empanelled and sworn. In each'of those cases the defendant *306was arraigned and plea made before the jury was empanelled and sworn, as shown in the opinion in the Allen case and in the record in the. Himes case.
When the jury was discharged in this case there had been no arraignment of the defendant on the information and no plea to the indictment, so there was no issue to be tried by the jury and consequently the defendant was not put in jeopardy before the jury was discharged in this case. See Sears v. State, 89 Fla. 490, 104 So. 857; McLeod v. State, 128 Fla. 35, 40, 174 So. 466; U. S. v. Riley, 5 Blatchf. 204; Green v. State, 28 A. L. R. 842, headnote 5; 16 C. J. 236-243-4; Colleys Const. Lim. (8th Ed.), p. 687, col. 2.
Where the defendant merely announces by counsel that he is ready for trial on a legal indictment charging a felony and, after being sworn to try the case, the jury is discharged because there had been no arraignment or plea, of the defendant, the defendant had not been put in jeopardy, as there was no issue joined to be tried. Sears v. State, 89 Fla. 490, 104 So. 857; McLeod v. State, 128 Fla. 35, 174 So. 466.
There being no plea, the defendants mere announcement by counsel that he was ready for trial did not waive a plea or make an issue on the indictment so as to put the defendant in jeopardy by the mere swearing of the jury to try the case, or to bar a trial in due course of law. See 14 Am. Jur., pp. 941-2-3; U. S. v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L. R. A. (N. S.) 1181; U. S. v. Riley, 5 Blatchf. 204; 16 C. J. 243-4; State v. Bronkol, 5 N. D. 507, 67 N. W. 680; State v. Rook, 61 Kan. 382, 59 Pac. 653, 49 L. R. A. 186; 1 Wharton Crim. Law (12th Ed.), Sec. 397, p. 565; Dixon v. State, 13 Fla. 631, 636; Levato v. New Mexico, 242 U. S. 199.
In Padgett v. State, 117 Fla. 75, 157 So. 186, the de*307fendant defended through the trial without a plea being entered and no question of former jeopardy was involved.
Thomas, J., concurs.
Whitfield, J.
(dissenting).- — In State ex rel. v. Himes, Judge, 134 Fla. 675, 184 So. 244, there would have been second jeopardy if another trial had occurred because a prosecution for the same offense had been abandoned in the midst of a trial before another judge and a jury duly sworn and empanelled to try the issue made upon arraignment and pleas as duly shown in the record of the case.
The first headnote in the Himes case is a quotation in the opinion taken from Allen v. State, 52 Fla. 1, 41 So. 593, 120 Am. St. 188, 10 Ann. Cas. 1085. Such headnote presupposes an arraignment and plea before the jury was empanelled and sworn. In each'of those cases the defendant was arraigned and plea made before the jury was empanelled and sworn, as shown in the opinion in the Allen case and in the record in the. Himes case.
When the jury was discharged in this case there had been no arraignment of the defendant on the information and no plea to the indictment, so there was no issue to be tried by the jury and consequently the defendant was not put in jeopardy before the jury was discharged in this case. See Sears v. State, 89 Fla. 490, 104 So. 857; McLeod v. State, 128 Fla. 35, 40, 174 So. 466; U. S. v. Riley, 5 Blatchf. 204; Green v. State, 28 A. L. R. 842, headnote 5; 16 C. J. 236-243-4; Colleys Const. Lim. (8th Ed.), p. 687, col. 2.
Where the defendant merely announces by counsel that he is ready for trial on a legal indictment charging a felony and, after being sworn to try the case, the jury is discharged because there had been no arraignment or plea, of the defendant, the defendant had not been put in jeopardy, as there was no issue joined to be tried. Sears v. State, 89 Fla. 490, 104 So. 857; McLeod v. State, 128 Fla. 35, 174 So. 466.
There being no plea, the defendants mere announcement by counsel that he was ready for trial did not waive a plea or make an issue on the indictment so as to put the defendant in jeopardy by the mere swearing of the jury to try the case, or to bar a trial in due course of law. See 14 Am. Jur., pp. 941-2-3; U. S. v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L. R. A. (N. S.) 1181; U. S. v. Riley, 5 Blatchf. 204; 16 C. J. 243-4; State v. Bronkol, 5 N. D. 507, 67 N. W. 680; State v. Rook, 61 Kan. 382, 59 Pac. 653, 49 L. R. A. 186; 1 Wharton Crim. Law (12th Ed.), Sec. 397, p. 565; Dixon v. State, 13 Fla. 631, 636; Levato v. New Mexico, 242 U. S. 199.
In Padgett v. State, 117 Fla. 75, 157 So. 186, the de fendant defended through the trial without a plea being entered and no question of former jeopardy was involved.
Thomas, J., concurs.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Himes, 153 Fla. 711 (Fla. 1943)…r absolute necessity, or on motion, or consent of the accused. See Allen v. State, 52 Fla. 1, 41, So. 593, 120 Am. St. R. 188, 10 Ann. Cas. 1085; State, ex rel. Dato, et al., v. Himes, Judge, 134 Fla. 675, 184 So. 244; State ex rel. Ryan v. McNeill, 141 Fla. 304, 193 So. 67. The State takes the position that the mistrial was declared upon motion of the defendant and upon his consent to such procedure. There is nothing to this contention. We think that the statements made by the trial judge to counsel immed…
-
State of Fla. ex rel. W. v. Hand, 209 So. 2d 873 (Fla. 2d DCA 1968)…State ex rel. Dato v. Himes, 1938, 134 Fla. 675, 184 So. 244; State ex rel. Alcala v. Grayson, supra [156 Fla. 435, 23 So. 2d 484].” [Emphasis in text.] One reported case not cited in Reyes is that of State ex rel. Ryan v. McNeill, Judge, Fla.1940, 193 So. 67, which is perhaps more factually analogous to the instant case than any of the cases cited. Hi Ryan the absolute rule in prohibition was issued, and the opinion of Justice Terrell concisely states [*875] of the facts there involved and the holding t…
-
State v. Lanier, 205 So. 2d 671 (Fla. 2d DCA 1968)…charge, for none of the legally sufficient reasons quoted in the Grayson case, supra, amounted to an acquittal. Thus, the motion to quash the information on the grounds of double jeopardy was properly entered. See also State ex rel. Ryan v. McNeill, 141 Fla. 304, 193 So. 67 (1940). The remaining issues and arguments raised by appellant have been carefully considered and rejected by this court in that we find them to be without merit. The judgment quashing the information is affirmed. Affirmed. SHANNON a…
Authorities Cited
- Lovato v. State of N.M., 242 U.S. 199 (U.S. 1916)
- Allen v. State, 52 Fla. 1 (Fla. 1906)
- State v. Himes, 134 Fla. 675 (Fla. 1938)
- Ossie Padgett and Wesley Hunter v. State, 117 Fla. 75 (Fla. 1934)
- Dixon v. State, 13 Fla. 631 (Fla. 1869)
- Lyll McLeod v. State, 128 Fla. 35 (Fla. 1937)
- Rice v. State Bank of Milton, 89 Fla. 490 (Fla. 1925)
- Sears v. State, 89 Fla. 490 (Fla. 1925)