Brewer v. State
| Decision Date | 12 October 1971 |
| Docket Number | No. M--446,M--446 |
| Citation | 253 So.2d 165 |
| Parties | Carl Franklin BREWER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carol Wild Scott, Gainesville, for appellant.
Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
This is an appeal from an order denying appellant's postconviction motion to vacate his judgment of conviction and sentence on robbery charges.
Prior to the initiation of these postconviction proceedings, appellant sought review of his conviction in a direct appeal to this court. We affirmed the conviction. 224 So.2d 713, decided in 1969.
Prior to the trial of that case, appellant had been charged with committing the offense of robbery on the same date and in the same store, the alleged victim however being the cashier at a different register in the same store. He was acquitted in the first trial. Appellant alleged in his motion below that the question of identification of the robber was the salient and controlling factual issue in both trials. He alleges that prior to the commencement of the second trial he sought dismissal of charges on the grounds of the double jeopardy clause of the state and federal constitutions. The trial in which he was acquitted and the later trial in which he was convicted both occurred, including appeal of the latter, prior to rendition of the United States Supreme Court's decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, which held that the federal rule on 'collateral estoppel' was a facet of 'double jeopardy' in its constitutional sense.
Thus, the sole question which we consider in this appeal is the retroactivity of the Supreme Court's decision in Ashe v. Swenson, supra. The state concedes that factually the case sub judice is analogous to Ashe and further that if the principle of Ashe is to be applied retroactively, this case would be controlled by Ashe. Appellant through appeal counsel has submitted a brief treating the question of retroactivity ably and exhaustively. However, no case binding on this court has been brought to our attention in said brief or in our independent research of the cases and authorities handed down since the submission of the briefs herein which holds foursquare that the decision in Ashe is to be given retroactive application. This court has applied Ashe, supra, to a case in which the judgment in the second trial (the trial the holding of which would have been foreclosed by the Ashe principle) had not yet become final when the Supreme Court announced its decision in Ashe. Eagle v. State, 249 So.2d 460 (Fla.App.1971). Unlike the Eagle case, however, the judgment in the case sub judice became final prior to the decision in Ashe.
The decision in Ashe resulted from an admitted engraftment of a federal procedural rule of collateral estoppel by the court upon the constitution that elevated that procedural principle to the status of a constitutional imperative. We, of course, are bound by Ashe and have in fact applied its teaching to pending cases. See Eagle, supra. In absence of controlling precedent, however, we are not inclined to extend the holding in Ashe beyond the circumstances before the Supreme Court when it decided Ashe.
In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Supreme Court articulated three factors generally involved in the determination of retroactivity of a newly announced principle of law to be as follows:
'(a) the purpose to be served by the new standards,
(b) the extent of the reliance by law enforcement authorities on the old standards, and
(c) the effect on the administration of justice of a retroactive application of new standards.'
In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, the Supreme Court discussed these factors and declined retroactive application of the rule in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, relating to the admissibility of evidence which was the fruit of an electronic surveillance conducted without prior judicial authorization. Thus, applying...
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Brewer v. State
...respondent. ROBERTS, Chief Justice. We here review by certiorari the decision of the District Court of Appeal, appearing as Brewer v. State of Florida, 253 So.2d 165, and which reported decision sets forth the history, factual background and legal conclusions. The District Court certified t......