141 So. 2d 323 | Fla. Dist. Ct. App. | 1962
Petitioners filed their suggestion that writ absolute issue prohibiting Honorable Robert L. McCrary, Jr., Circuit Judge, and the Fourteenth Judicial Circuit of Florida from proceeding with trial of petitioners under information charging them with grand larceny. This court issued a rule nisi and now considers whether rule absolute should issue.
Petitioners were tried and convicted in the Circuit Court of Jackson County, Florida, upon information charging them with committing the crime of grand larceny. Motion for new trial was seasonably made by petitioners, and upon consideration thereof, the trial judge found that the record disclosed insufficient proof of venue and entered an order granting a new trial to petitioners. The points on appeal are:
1. Does prohibition lie in this case since petitioners have an adequate remedy by appeal ?
2. Does the suggestion for writ of prohibition demonstrate that the petitioners are subject to double jeopardy?
We will first dispose of the procedural point. The respondent contends that petitioner should await the results of a second trial and if not satisfied with the results, then utilize the remedy of appeal. In support of this position, it cites State ex rel. Johnson v. Anderson
“The respondent does not question the proposition that prohibition is the appropriate procedure to follow in order to obtain the relief sought. He does, however, contend that the petitioners are not entitled to the relief they seek. We have held that prohibition is the appropriate procedure. State ex rel. Manning v. Himes, 153 Fla. 711, 15 So.2d 613.”
Consequently, we hold that the writ has been properly brought and now proceed to the merits of the cause as set out in the second point.
It is petitioners’ contention that once a new trial was granted, the State was in such position that it could have appealed from the trial judge’s order granting a new trial and during the pendency of such appeal, the State could have again instituted prosecution in the trial court and thereby have placed petitioners in double jeopardy. We are not confronted with such a factual situation. The record reveals that the State has not appealed the trial judge’s order, and that the time for taking an appeal from said order has expired. This Court should not indulge in what might or might not happen in arriving at a decision on the merits of the case at bar.
Petitioners concede that a long line of early decisions rendered by our Supreme Court hold that jeopardy ceases as if it had never existed when defendants are awarded a new trial after conviction so as not to preclude another trial upon the subject matter. However, they contend that such decisions were based upon the premise that the State did not have the right to appeal, and the enactment in 1939 of section 924.10 F.S., F.S.A., which gave the state the right of appeal, abolished the reason for the rule and thus abolished the rule itself. We do not agree with petitioner’s position. Gibson v. State
“As to the plea, we think the court did not err in holding that it furnished no sufficient defense against the further prosecution of the prisoner. That a party cannot be twice put in jeopardy for the same offense is well established in law; but when there has been a trial for an offense, and a verdict of guilty, and on motion of the party convicted the court arrests the judgment, or grants a new trial, it is uniformly held that such party has not been in the jeopardy which forbids a second trial, whether upon the same indictment or a new one. The arrest of judgment or the new trial being at his instance, and for his benefit, and the prosecution being thereby suspended, the jeopardy ceases, and is, so far as a new indictment after arrest of judgment is concerned, as if it had never existed. 1 Bish.Crim.Law, § 1000.” [Emphasis supplied.]
The above quoted excerpt sets out the rule that is practically uniformly followed in other jurisdictions and if the opinion had ceased at that point, no justiciable issue would be posed. However, the Court further stated in the Gibson case, the following:
“The rule is applicable in this state, because the prosecutor has no right of appeal for the reversal of the judgment of arrest, while in states where such appeal is allowed the jeopardy is considered as still existing.” [Emphasis supplied.]
and reiterated the same basis for its holding in McLeod v. State,
“The former trial in the circuit court having been concluded and a new trial granted on motion of the defendant, the defendant then stood in the same position as if he had been charged with murder in the second degree and no trial had been had. Jeopardy ceased upon the granting of a new trial because there was no appeal available to the state from the judgment granting the new trial. Gibson v. State, 26 Fla. 109, 7 So. 376.”
Therefore, we must recognize that prior decisions of this jurisdiction have been founded to some extent upon the absence of a right of appeal by the State from post-trial orders.
However, reverting to the Gibson case we find in addition to the statement as to the rule adopted and the reason therefor, the following doctrine of waiver enunciated on page 377 as follows:
“[W]hile in states where such appeal is allowed the jeopardy is considered as still existing. And, so far as a new trial is concerned when granted on motion of the defendant, the jeopardy of the previous trial is waived by him, and is not available for his defense. 1 Bish.Crim.Law, §§ 1001, 1003.”
The Supreme Court has clearly recognized the doctrine of waiver by defendant in the event the right of appeal was made available to the state. We think this is the more logical rule to be followed.
Weighing the able contentions of counsel for each party, we conclude that to sustain petitioner’s contentions would be to impose a strained interpretation upon Section 12, Declaration of Rights, Florida Constitution F.S.A. Petitioners have been tried and convicted of the crime of grand larceny. They were dissatisfied with the results of their trial and asked the trial judge for a new trial. The able trial judge conscientiously examined the record, found insufficient proof of venue therein, and granted to petitioners that which they had asked. Having acquired what they sought, the petitioners now say they do not want it. They want to be set free and never
Writ of prohibition absolute is denied and the rule nisi discharged.
. State ex rel. Johnson v. Anderson, 37 So. 2d 910 (Fla.1948).
. 25 Fla.Jur., Prohibition, § 37, p. 487.
. State ex rel. Williams v. Grayson, 90 So.2d 710, 63 A.L.R.2d 777 (Fla.1956).
. Some question existed as to defendant’s joining in this motion.
. Gibson v. State, 26 Fla. 109, 7 So. 376 (1890).
. McLeod v. State, 128 Fla. 35, 174 So. 466 (1937).
. See Footnote (5).