JAMES W. HOLMES, APPELLANT,
v.
ROBERT H. BONANNO, COUNTY JUDGE, HILLSBOROUGH COUNTY, APPELLEE
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A trial judge declared a mistrial over the defendant's objection when the prosecution was unprepared to try one of two consolidated charges. The appellate court reversed, holding that lack of state preparedness does not constitute the manifest necessity required to declare a mistrial over a defendant's objection without violating double jeopardy protections.
A mistrial may only be declared over a defendant's objection upon a showing of manifest necessity or defendant misconduct. The state's lack of awareness that both consolidated cases were to be tried, even if partly due to clerk error or prosecutor reassignment, does not constitute manifest necessity. Such a mistrial violates the defendant's constitutional protection against double jeopardy.
[1] A petition for a writ of certiorari seeking review of a circuit court's appellate decision may be treated as a direct appeal.
[2] A mistrial declared over a defendant's objection requires manifest necessity or misconduct by the defendant to avoid violating double jeopardy protections.
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Join FLexlaw to unlock all legal intelligence“A mistrial may be declared over a defendant's objection only in instances of "manifest necessity" or misconduct on the part of the defendant.”
Establishes the legal standard for declaring mistrial over defendant objection without violating double jeopardy
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Join FLexlaw to unlock all legal intelligenceHolmes was charged with driving under the influence and resisting arrest without violence. The two offenses were consolidated for a single non-jury tr…
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PER CURIAM.
James Holmes petitions this court for a writ of certiorari to review a decision of the circuit court “acting in its appellate jurisdiction.” Since the proceeding below was a petition for a writ of prohibition, we treat Holmes’ present petition as a direct appeal. See, e.g., State ex rel. Dunscombe v. Smith, 56 So. 2d 536 (Fla.1952).
Holmes was charged in county court with driving while under the influence of alcohol and resisting arrest without violence. Upon timely motion by Holmes the two related offenses were consolidated for a single non-jury trial. On the date scheduled for trial the court called both cases. The state produced one witness, an officer who described Holmes’ struggle with police while being transported from a hospital to the stationhouse. This witness had not been present at the time of Holmes’ arrest and did not observe Holmes driving. Defense counsel therefore moved for a judgment of acquittal on the charge of driving while under the influence, whereupon the Assistant State Attorney indicated she was unaware both charges were to be tried that day. Over Holmes’ objection the trial judge declared a mistrial on both charges.
The circuit court denied Holmes’ petition for a writ of prohibition, stating that the trial court “properly declared a mistrial.” We disagree. A mistrial may be declared over a defendant’s objection only in instances of “manifest necessity” or misconduct on the part of the defendant. Spaziano v. State, 429 So. 2d 1344 (Fla. 2d DCA 1983). Retrial of the defendant otherwise violates the constitutional prohibition against double jeopardy.1 It has not been suggested that this case involves misconduct by Holmes, and we reject appellee’s contention that manifest necessity arose because “the state had no real notice that it was trying the [D.U.I.] case. Although the confusion may have been partly attributable to an error in the docket prepared by the clerk or to reassignment to a different prosecutor, the state should have been aware that the two cases previously had been consolidated. The order of the circuit court is reversed with directions to issue the writ of prohibition.
CAMPBELL, Acting C.J., and SCHOON-OVER and LEHAN, JJ., concur. . In a non-jury trial jeopardy attaches when the court begins to hear evidence. Bernard v. State, 261 So. 2d 133 (Fla.1972).
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Citator
Cited By
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Glennis Jones v. Honorable Edward H. Bergstrom, Jr., 541 So. 2d 162 (Fla. 2d DCA 1989)…a defendant’s objection only in instances of “manifest necessity” or for misconduct on the part of the defendant. Otherwise, subjecting the defendant to retrial violates the constitutional prohibition against double jeopardy. See Holmes v. Bonanno, 484 So. 2d 77 (Fla. 2d DCA 1986). The mistrial herein was granted during the testimony of Maria Thomas, a state’s witness. On cross-examination, defense counsel asked Ms. Thomas if defendant was a witness in a civil suit against her mother. The assistant state a…
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Dolinger v. Rasmussen, 609 So. 2d 166 (Fla. 2d DCA 1992)…ied his petition for writ of prohibition. Since Dolinger’s petition was an original civil proceeding governed by Florida Rule of Civil Procedure 1.630, the proper method for review by this court is appeal rather than certiorari. Holmes v. Bonanno, 484 So. 2d 77 (Fla. 2d DCA 1986). However, in any event we agree with the circuit court that Dolinger’s petition “does not show a prima facie case for relief.” No responsive brief is necessary. See Fla.R.App.P. 9.315(a). Affirmed. HALL, A.C.J:, and THREADGILL…
Authorities Cited
- Spaziano v. State, 429 So. 2d 1344 (Fla. 2d DCA 1983)
- Weathers v. State, 56 So.2d 536 (Fla. 1952)
- E. S.S. Corp. v. Egan, 261 So. 2d 133 (Fla. 1972)
- Bernard v. State, 261 So. 2d 133 (Fla. 1972)