Ballard v. Thompson, 82-1431

• Decision Date: 10 November 1982
• Docket Number: No. 82-1431,82-1431
• Citation: 421 So.2d 779
• Parties: David E. BALLARD, Petitioner, v. Honorable Emerson R. THOMPSON, Jr., Circuit Judge, Ninth Judicial Circuit of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 779

421 So.2d 779

David E. BALLARD, Petitioner, v. Honorable Emerson R. THOMPSON, Jr., Circuit Judge, Ninth Judicial Circuit of Florida, Respondent.

No. 82-1431.

District Court of Appeal of Florida,

Fifth District.

Nov. 10, 1982.

Ed Leinster, Orlando, for petitioner.

No appearance for respondent.

PER CURIAM.

The petition for writ of prohibition is denied.

ORFINGER, C.J., and SHARP, J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge, concurring specially:

In August of 1979, petitioner was arrested and charged with five counts of embezzlement from one individual, all allegedly occurring between March 2 and March 16, 1979. Not having been tried on those charges within 180 days, he moved for a discharge, which was denied by the trial court. This court granted a writ of prohibition and discharged petitioner as to those charges. Ballard v. Kaney, 397 So.2d 1042 (Fla. 5th DCA 1981).

In August of 1981, the State filed a second information alleging five counts of embezzlement allegedly occurring between April 6 and May 4, 1979, and involving property of the same owner or custodian involved in the embezzlement charges filed in August of 1979. Petitioner moved for a speedy trial discharge as to the new information on the theory that the new charges were "but a reiteration" of the first charges, concerning which petitioner had been discharged. The trial court denied petitioner's motion and the petitioner again seeks a writ of prohibition.

Florida Rule of Criminal Procedure 3.191(h)(1) provides that a speedy trial rule discharge bars prosecution, not only of the crime charged, but also all other crimes which might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense. Petitioner's best argument seems to be that since in both informations the State charged a series of embezzlements, which is permitted by Florida Rule of Criminal Procedure 3.150(a) only when the offenses are based on the same act or transaction or connected acts or transaction, the acts alleged in the first information and the acts alleged in the second information should all be considered as but one criminal transaction or episode and the petitioner being discharged as to some is now discharged as to all. The petitioner cites Harper v. State, 141 So.2d 606 (Fla. 2d DCA 1962), and Hearn v. State, 55 So.2d 559 (Fla.1951).

I do not agree with Harper to the extent that case can be read to hold that, if a series of separate acts or thefts from the same person at different times over a long period of time can be said to have resulted from "a single impulse," then all such acts constitute but one offense. Although not articulated as such, cases such as Harper were influenced by the then...