*1 945 No. 73-5102. Waller v. Florida. Dist. App. Ct. Fla., 2d Dist. Certiorari Stay denied. order heretofore by entered the on Court June 1973 18, U. S. 947], [412 vacated. Doug-
Mr. Justice Brennan, whom with Mr. Justice las and Mr. Justice Marshall concur, dissenting.
Convicted by a St. Petersburg Municipal Court of
violating local ordinances,
in removing a canvas mural
from a wall
inside the City Hall of St. Petersburg,
Florida, and carrying the mural
through the city streets,
petitioner was subsequently
convicted on a
of
charge
grand larceny for the same conduct.
granted
We
cer-
tiorari, vacated the latter
judgment,
and remanded for
further proceedings, holding that
the state appellate
court erred when it ruled that a State and its munici-
palities were separate
sovereigns
for purposes of the
double
provisions
jeopardy
of the Fifth Amendment, and
for
that
reason rejected petitioner’s
double jeopardy
claim. Waller v. Florida, 397 U. S.
(1970).
387
On
remand,
the Circuit Court of Pinellas County rejected
petitioner’s
assertion of double jeopardy
grounds—
on
not previously reached by the state courts due to their
reliance
on the dual
sovereignty
theory
the
—that
violations of the local ordinances
grand
and
larceny
were not the “same offense.” The Florida District Court
of Appeal, Second District,
affirmed
judgment
the
of
conviction,
At all times it has been conceded that the municipal and state charges arose out of the “same transaction or occurrence.” See Waller v. Florida, supra, at 388. It my is view that the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States 946 Mary- v. Benton Amendment, Fourteenth the
through prosecution, the requires (1969), 784 U. S. land, 395 *2 here, present not circumstances, limited most in except a defendant against charges the all trial at one join “to epi- occurrence, act, criminal single aof out grow that 436, Swenson, U. S. 397 Ashe v. transaction.” or sode, Miller see concurring); J., (1970) (Brennan, at 453-454 dissent J., (1972) (Brennan, 1047 405 U. S. Oregon, v. (1971) 57 55, S. 404 U. Washington, v. Harris ing) ; Florida, at 395 supra, v. Waller concurring); J., (Douglas, trans “same this Under concurring). J., (Brennan, have should petitioner against charges all test, action” case fell this unless prosecution, single in a brought been v. Ashe g., e. See, exceptions. test’s of the one within there- I would 11. n. 455 7, n. 453 Swenson, at supra, fur- for and remand for certiorari petition the grant fore expressed views the with inconsistent not proceedings ther Swenson, supra. v. in Ashe my concurrence in 1973 23, October al. et Inc., Ltd., v. Classics, 72-1510. Cinema No. Angeles Attorney County, of Los Busch, District D. Cal. D. C. C. from Mr. appeal on Affirmed et al. Fourteenth view that the of the being Douglas, Justice obscenity regula- prohibit state Amendments and First is the sub- judgment of the much as so vacate would tion,