STATE OF FLORIDA EX REL. GRADY RICHARD VOLKERS, RELATOR,
v.
THE HONORABLE URIEL BLOUNT, JR., AS CIRCUIT JUDGE OF THE SEVENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, RESPONDENT
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Florida defendant Volkers seeks a writ of prohibition to bar prosecution for marijuana sale after being acquitted on the first information. The court grants the writ, holding that the second prosecution violates double jeopardy protections because both informations concern the same sale to Deputy Grier, despite the first information's erroneous reference to a confidential informant.
The court held that the trial court erred in denying the motion to dismiss the second information on double jeopardy grounds. When there is a former prosecution for the same offense in the same state, the defendant was in jeopardy, the parties are identical, and the offense constitutes a bar, double jeopardy has been proved. The writ of prohibition is granted to bar further prosecution.
[1] Double jeopardy bars a second prosecution for the same offense when a prior prosecution for that offense has resulted in a judgment of acquittal.
[2] A defendant is placed in jeopardy when a trial commences on an information charging a specific offense, even if that information contains a factual error regarding the id…
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Join FLexlaw to unlock all legal intelligence“When it is made to appear that there was a former prosecution in the same state for the same offense; that the same person was in jeopardy on the first prosecution; that the parties are identical in the same prosecution; and that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar, double jeopardy has been proved.”
Establishes the legal test for double jeopardy that the court applied to Volkers' situation
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceVolkers was arrested for selling marijuana to Deputy Grier. The State filed an information charging him with sale to a confidential informant. At tria…
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MILLS, Judge.
Volkers has filed a suggestion seeking a writ prohibiting the trial court from permitting the further prosecution of him for the sale of marijuana.
Volkers was arrested for the. sale of marijuana to Deputy Grier. Subsequently, an information was filed charging him with the sale of marijuana to a confidential informant. Volkers moved to dismiss the information, because of the danger of double jeopardy. In addition, by motion for a statement of particulars, he sought the name and address of the confidential informant. At the hearing on the motions, the State advised the court that the confidential informant did not relate to the charge against Volkers. Both motions were denied.
The trial commenced. At the conclusion of the State’s case, the court granted a judgment of acquittal in favor of Volkers, because the State proved a sale to Deputy Grier, but not to the confidential informant.
Subsequently, the State filed another information charging Volkers with the sale of marijuana to Deputy Grier. Volkers moved to dismiss this information, because of former case was for the identical offense gave a deposition that the prosecution of the former case was for the indentical offense for which he was now being prosecuted, and that the words “confidential informant” were merely typographical or administrative error. In his deposition, Deputy Grier admitted that his former testimony would be identical in every material aspect, and would involve the same transaction. Vol-kers’ motion was denied and he filed the suggestion for a writ of prohibition.
Under the facts in this case, the court erred in refusing to dismiss the second information on the ground of former jeopardy. When it is made to appear that there was a former prosecution in the same state for the same offense; that the same person was in jeopardy on the first prosecution; that the parties are identical in the same prosecution; and that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar, double jeopardy has been proved. State v. Beamon, 298 So. 2d 376 (Fla.1974).
The facts in the case before us are distinguishable from those in State v. Beamon, and State v. Bentley, 81 So. 2d 750 (Fla.1955), which the State relies upon. In this case, the defendant was arrested for sale of marijuana to Deputy Grier. Although the State knew or should have known this, it informed against Volkers for a sale to a confidential informant. To compound the error, the State informed the court that the confidential informant did not relate to the charge against Volkers. Nevertheless, the State failed to amend its information, but proceeded to trial where the court correctly directed a judgment of acquittal when the State proved that the sale was made to Deputy Grier, not to a confidential informant. Not only was Volk-ers placed in double j eopardy by the second information, but we cannot permit the gross injustice which would result under the facts of this case by permitting the State to prosecute him a second time.
The suggestion is granted, and the writ of prohibition is issued and made absolute prohibiting further prosecution of Volkers for the sale of marijuana to Deputy Grier on 12 July 1975.
RAWLS, Acting C. J., and McCORD, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Shaw, 415 So. 2d 93 (Fla. 4th DCA 1982)…e to Detective Ecklund. Thus, the lower court’s dismissal of the second information was reversible error, and we remand the cause for trial. The only case which even colorably lends support to appellee’s position is State ex rel. Volkers v. Blount, 336 So. 2d 377 (Fla. 1st DCA 1976), cert. denied 341 So. 2d 1079 (Fla.1976). In Volkers, defendant was arrested for selling marijuana to a Deputy Grier, but was charged by information with selling marijuana to a confidential informant. At trial, the state proved t…
Authorities Cited
- State v. Beamon, 298 So. 2d 376 (Fla. 1974)
- State v. Bentley, 81 So. 2d 750 (Fla. 1955)