WENDELL MURRAY, PETITIONER,
v.
THE HONORABLE MICHAEL B. CHAVIES, JUDGE OF THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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The court held that a jury's acquittal on a charged offense, even with a subsequent mistrial on a lesser included offense, bars retrial on the greater offense due to double jeopardy.
A jury acquitted the defendant of second-degree murder but found him guilty of manslaughter. After a juror dissented on the manslaughter verdict, the …
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PER CURIAM.
Petitioner, the defendant below, Wendell Murray, petitions this Court for a writ of prohibition to prevent retrial for second-degree murder. We grant the petition.
The defendant was tried for second-degree murder before a jury. The jury's instructions and verdict forms included the lesser offenses of manslaughter and culpable negligence. The jury returned signed, completed verdict forms of not guilty of second-degree murder and guilty of manslaughter as a lesser included offense.
After the trial court polled the jury on the manslaughter verdict, one juror indicated that she did not concur. The case was then sent back to the jury for further deliberations. With the jury unable to arrive at a unanimous verdict, the trial court declared a mistrial.
The petitioner contends that because jeopardy attached, he cannot be retried for second-degree murder. The State asserts that retrial for second-degree murder is proper because double jeopardy has not attached.
Prohibition is a proper remedy where the defendant’s right against double jeopardy has been violated. Strawn v. State ex rel. Anderberg, 332 So. 2d 601 (Fla.1976); Parce v. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988), rev. denied, 542 So. 2d 988 (1989). Here, the jury returned a properly executed verdict form acquitting the defendant of the charged offense of second-degree murder. Thus, double jeopardy protections attached to prevent the defendant’s retrial for second-degree murder. See United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). We grant the petition for writ of prohibition and remand for retrial on the lesser included offense of manslaughter. Petition for writ of prohibition granted; case remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moody v. State, 931 So. 2d 177 (Fla. 2d DCA 2006)…vehicle by which to challenge a ruling that permits the prosecution of a defendant in violation of his federal and Florida constitutional protections against double jeopardy. See Rohr v. State, 916 So. 2d 1002 (Fla. 2d DCA 2006); Murray v. Chavies, 671 So. 2d 183, 184 (Fla. 3d DCA 1996); Beebe v. Foster, 661 So. 2d 401, 402 (Fla. 1st DCA 1995). As is well known, the double jeopardy protections prohibit retrying a defendant after a jury has acquitted him of the charge. See Sanabria v. United States, 437 U.S.…
Authorities Cited
- Green v. United States, 355 U.S. 184 (U.S. 1957)
- United States v. Scott, 437 U.S. 82 (U.S. 1978)
- Honorable David U. Strawn v. State of Fla. ex rel. Jon Anderberg, 332 So. 2d 601 (Fla. 1976)
- Parce v. Honorable James S. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988)