Busbee v. State, G-310

• Decision Date: 03 February 1966
• Docket Number: No. G-310,G-310
• Parties: Andrew BUSBEE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 27

183 So.2d 27

Andrew BUSBEE, Jr., Appellant, v. STATE of Florida, Appellee.

No. G-310.

District Court of Appeal of Florida, First District.

Feb. 3, 1966.

Rehearing Denied March 2, 1966.

George G. Phillips, Pensacola, for appellant.

Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty. Gen., for appellee.

RAWLS, Chief Judge.

Defendant Busbee appeals a judgment of conviction for the offense of manslaughter by operation of a motor vehicle while intoxicated.

On February 23, 1963, at 5:30 a. m. a newspaper boy while riding a bicycle on Barrancas Avenue in Warrington was struck by a motor vehicle. The boy later died. There was evidence that Busbee had been drinking beer and mixed drinks all night; that he arrived at the Coral Club at 3:00 a. m. driving a light colored Falcon truck; that he left the club about 4:40 a. m.; and that witnesses who saw him in the club described him as 'drunk'. The broken radio antenna found under the boy's body, paint scrapings, and dent marks positively identified the vehicle involved as Busbee's Falcon truck.

Based on these facts, Busbee was informed against in the Circuit Court for the offenses of hit and run and manslaughter by operation of a motor vehicle while intoxicated. The misdemeanor was transferred to the County Judge's Court where it was tried and Busbee was acquitted. Busbee then moved to quash the manslaughter charge on the grounds of res judicata on the premise that the jury in the misdemeanor case apparently found that he was not driving the Falcon when it hit the boy. The motion was denied and Busbee was convicted of manslaughter.

Several questions are raised on this appeal but the only one meriting our attention is: Does an acquittal of the offense of hit and run constitute an estoppel under the doctrine of res judicata to a later prosecution for the offense of manslaughter by operation of a motor vehicle while intoxicated? The trial judge answered this question in the negative and we affirm.

The parties have cited no Florida cases directly in point and our research has failed to reveal any. Under general authority ^{1 1} the doctrine of res judicata is just as applicable to judgments in criminal prosecutions as to those in civil cases, so under proper circumstances, facts and matters directly determined by a criminal court of competent jurisdiction cannot afterwards be disputed between the same parties.

However, the effect of an acquittal or conviction as a bar to a later prosecution for an offense substantially the same as the former and rising out of the same occurrence, is usually controlled by the doctrine of former jeopardy so that the doctrine of res judicata is often lost in the broader doctrine. The two doctrines have been distinguished by the Georgia Supreme Court in Harris v. State ² which held that in order to sustain a plea of former jeopardy, it is incumbent upon the defendant to plead and prove that the transactions are the same as a matter of fact and the offenses are identical in law. However, where the transactions giving rise to the two crimes are the same as a matter of fact, even though the offenses are not identical as a matter of law, a defendant may under the principle of res judicata, which is included in a plea under the broader doctrine of former jeopardy, show that the acquittal on the first charge was necessarily controlled by the determination of a particular issue or issues of fact which would preclude his conviction of the second charge.

The Harris case represents the majority view which is apparently the underlying principle followed by the Florida Supreme Court in State v. Bacom. ³ Bacom had pleaded guilty and was sentenced under an information charging him with reckless driving of an automobile (Section 317.21, F.S.A.) and operating a motor vehicle while under the influence of intoxicating liquor (Section...