STATE OF FLORIDA EX REL. ALLISON D. JONES, RELATOR,
v.
E. G. NEWELL AND HUGH MACMILLAN, AS JUDGES OF THE CRIMINAL COURT OF RECORD, IN AND FOR PALM BEACH COUNTY, FLORIDA, RESPONDENTS
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The Florida District Court of Appeal held that a trial court lacked jurisdiction to reinstate a criminal information after the prosecutor had unconditionally entered a nolle prosequi in a prior term of court, and issued a writ of prohibition preventing the court from proceeding on the reinstated charge.
The court held that an unconditionally entered nolle prosequi terminates the proceeding and the information cannot be reinstated at a subsequent term. The reinstatement of the surety bond, although beneficial to the defendant, does not constitute consent to reinstatement of the information. The court expressly declined to address whether valid consent could theoretically be given to reinstate an information in a subsequent term.
“if the prosecuting attorney unconditionally enters a nolle prosequi of the indictment or information, the proceeding is terminated; and the same indictment or information cannot be reinstated at a subsequent term of court and prosecution thereon resumed”
Establishes the controlling rule that unconditional nolle prosequi is final and bars reinstatement in a later term
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Join FLexlaw to unlock all legal intelligenceAllison D. Jones was charged with larceny of an automobile on April 23, 1959. On June 29, 1959, during the same term, the county solicitor nolle pross…
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Suggestion for writ of prohibition was filed in this court for an order commanding the criminal court of record of Palm Beach County, Florida, and the respondent judges to show cause why said court and judges should not be prohibited from assuming or exercising any jurisdiction in that certain cause pending in the said criminal court of .record entitled the State of Florida v. Allison D. Jones, defendant, case number 5022-B. The respondents timely filed their return, and the cause was duly argued and; submitted to this court.
Factually, it appears that on April 23,. 1959, the relator, Allison D. Jones, was informed against in the said criminal court of record on the charge of larceny of an automobile; that on June 29, 1959, the information thus filed was nolle prossed by the county solicitor; that on July 20, 1959, the-respondent judge, the Honorable E. G. Newell, entered an order vacating the nolle prosequi; that on October 21, 1959, a motion to quash the reinstated information was filed and denied.
The relator asserts that the information is now a nullity and that therefore the court *753is without jurisdiction or authority to proceed on the purported reinstated information. It is agreed that the nolle prosequi was entered during the same term in which the information was filed but that vacation of the nolle prosequi was in the subsequent term. The respondents urge that, even though the accusatory pleading was nolle prossed in the subsequent term, it may be reinstated where consent of the defendant is given. They contend that the reinstatement of a surety bond, furnished by the defendant but previously estreated, constituted a consent to vacation of the nolle prosequi and reinstatement of the information. The bond had been estreated at the time the information was nolle prossed. In the subsequent term the estreature had been vacated two days after the court had vacated the nolle prosequi. Because of the bond .reinstatement the respondents contend that the defendant benefited and should be precluded from asserting that the information was a nullity.
In 14 Am.Jur., Criminal Law, section 295, pp. 966-967, the rule according to the weight of authority is set forth that if the prosecuting attorney unconditionally enters a nolle prosequi of the indictment or information, the proceeding is terminated; and the same indictment or information cannot be reinstated at a subsequent term of court and prosecution thereon resumed. See also Annotation 112 A.L.R. 386. As stated, the vacation of the nolle prosequi was in a subsequent term. We hold that the order vacating and setting aside the bond estreature and reinstating the bond, although of benefit to the defendant, did not constitute a consent by the defendant to vacation of the nolle prosequi and reinstatement of the information. In so holding we are not indicating whether consent can be validly given so as to effectuate .reinstatement of an information in a term subsequent to that of its nolle prosequi. Also, this holding has no bearing on the filing of a new information.
It is, thereupon, considered and ordered that the criminal court of record of Palm Beach County, Florida, and the Honorable E. G. Newell and the Honorable Hugh MacMillan, as judges of said court, be and they are hereby prohibited from assuming or exercising any jurisdiction in said cause.
It is so ordered.
ALLEN, C. J., and KANNER and .SHANNON, JJ., concur.
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Klopfer v. North Carolina, 386 U.S. 213 (U.S. 1967)…r court decisions in 13 of these proscribe reinstatement of the indictment at a subsequent term. See Lawson v. People, 63 Colo. 270, 165 P. 771 (1917); Price v. Cobb, 60 Ga. App. 59, 61, 3 S. E. 2d 131, 133 (1939), (by implication); Jones v. Newell, 117 So. 2d 752 (D. C. App. Fla., 2d Dist., 1960); State v. Wong, 47 Haw. 361, 389 P. 2d 439 (1964); People v. [*221] Watson, 394 Ill. 177, 68 N. E. 2d 265 (1946), cert. denied, 329 U. S. 769; La. Rev. Stat. § 15:328 (1950); Barrett v. State, 155 Md. 636, 142 A. 96…