Crews v. StateCrews v. State
This cause is before us on appeal from judgment of conviction entered on a plea of nolo contendere finding appellant guilty of carrying a concealed weapon in violation of
Crews was arrested in Jacksonville, Florida, and could have been charged pursuant to § 328.206 of the Ordinance Code of the City of Jacksonville which proscribes the same conduct and carries a maximum penalty of 90 days and/or a $500 fine. However, he was charged with violating
In Hutcherson v. U.S., 120 U.S.App.D.C. 274, 277, 345 F.2d 964, 967 (1965), cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965), the defendant was convicted of a violation of the federal narcotics statutes, proscribing the same conduct, but with a greater maximum penalty, as the Code of the District of Columbia. The court specifically rejected the defendant‘s equal protection argument, holding:
“Hutcherson‘s next contention is that he was denied due process because he was indicted and convicted under federal statutes instead of under the D.C. Code. His point is that the offenses denounced by the federal and local statutes are identical and that he was entitled to be prosecuted under the latter because the penalty for violating it is less severe than that provided by the federal statute. The theory is untenable. A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution. That choice is to be made by the United States Attorney. This was aptly stated by the Fifth Circuit in Deutsch v. Aderhold, Warden, 80 F.2d 677, 678 (1935):
`The United States attorney of the district where a violation of a federal statute occurs is charged with the duty of prosecution and vested with complete control over the proceedings, in the exercise of sound discretion. If the facts show a violation of two or more statutes, he may elect under which he will prosecute, in the absence of a prohibitory statute. * * *‘”
In Davis v. U.S., 385 A.2d 757, 759 (D.C. App. 1978), the defendant pleaded guilty to a charge of operating a lottery in violation of
“Further, it is not a denial of due process or equal protection for the government to choose to prosecute under a federal statute which imposes greater penalties for the same offense than an identical District of Columbia statute, and the reasoning applies with equal force where the local statute provides greater penalties than the federal one. A defendant has no constitutional right to elect which of two applicable statutes will form the basis of his indictment and prosecution. United States v. Greene [160 U.S.App. D.C. 21, 489 F.2d 1145], supra; Hutcherson v. United States, 120 U.S.App.D.C. 274, 277, 345 F.2d 964, 967 (1965). Congress in the exercise of its power over the District of Columbia may enact laws which are similar to national legislation but which provide different penalties; it is within the discretion of the United States Attorney to determine which shall form the basis of the prosecution. United States v. Jones, 174 U.S.App.D.C. 34, 37, 527 F.2d 817, 820 (1975). Appellant thus cannot protest the government‘s right to elect to prosecute him under either statute.”
See United States v. Shepard, 169 U.S.App. D.C. 353, 361, 515 F.2d 1324, 1332 (1975); United States v. Greene, 160 U.S.App.D.C. 21, 27, 489 F.2d 1145, 1151 (1973). The
Prosecutorial discretion is inherent in our system of law. The discretion to charge under either a municipal ordinance or a state statute is but one example. Analogous is the discretion exercised by a prosecutor in determining whether to prosecute or to abandon prosecution. Another example is the discretion exercised in determining whether a person under the age of eighteen shall be prosecuted as a juvenile or as an adult. In Johnson v. State, 314 So.2d 573, 577 (Fla. 1975), the Florida Supreme Court held:
In both adult and juvenile divisions of our court system, the State Attorney is the prosecuting officer. In any particular case he may elect to prosecute or not. The prosecutorial discretion to which the appellant objects is no more than that which is inherent in our system of criminal justice. Its origin is found in the common law of England. Similarly in the Federal system the Federal courts have consistently held that the discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute.
Accordingly, the judgment below is AFFIRMED.
BOYER, Acting C.J., and MILLS, J., concur.
Notes
“In my view it is sufficient to say there is no substantial difference between allowing the United States Attorney for the District of Columbia to proceed either under the municipal or the federal legislation in his discretion in allowing his counterpart in a state to bring a federal action or to defer to state authorities. To draw such a distinction would be to sanction the kind of hairsplitting judicial sophistries that undermine rather than advance a rational and fair administration of the criminal law.”