Cohens v. Elwell

Decision Date09 June 1992
Docket NumberNo. 91-2644,91-2644
Citation600 So.2d 1224
Parties17 Fla. L. Weekly D1478 Paul E. COHENS, Petitioner, v. Honorable Thomas ELWELL, Circuit Judge, Respondent.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., for respondent.

PER CURIAM.

Paul E. Cohens petitions this court for a writ of prohibition, arguing that any further prosecution on certain criminal charges would violate his constitutional protections against double jeopardy. Finding that his claims have merit, we grant his petition and issue the writ.

A jury of six members plus an alternate was selected and sworn on Monday, August 5, 1991. Cohens' trial on a charge of conspiracy to traffic in cocaine was then scheduled to commence on Friday, August 9. At 1:20 p.m. on Thursday, August 8, a hearing was held where the state advised the court that at approximately 4:00 p.m. on Monday afternoon, August 5, the prosecutor was advised by an FDLE agent that Leroy Ellis, a confidential source and an essential state witness, had been hospitalized in Orlando with heart problems. On Wednesday, August 7, the FDLE agent was advised that a heart catheterization would be performed to determine if surgery was necessary. Surgery was subsequently ruled out and Ellis was expected to be discharged on Friday. His doctors advised him, however, that he was to remain sedentary for at least two days. The FDLE agent testified at hearing that he learned of Ellis' hospitalization during a phone call on Monday afternoon. FDLE agents in Orlando confirmed that Ellis was hospitalized and the nature of his medical situation. The state moved for continuance of the trial until the following week. At that point, a deputy clerk testified that he had, pursuant to the trial court's instructions, called each of the jurors and asked whether they could serve if the trial were to be held on August 16. Two said it would be a hardship and four said there would be no problem. Both attorneys stated they would be available to try the case the following Thursday or Friday but the judge scheduled the case for Friday, August 16.

A second hearing was held on Tuesday, August 13. There the trial judge stated that two jurors advised him that they could not serve on Friday. One juror held non-refundable airline tickets for a family vacation. The second, a veterinarian, was scheduled to perform surgery on Friday without a backup. The jury was discharged when the defense would not agree to proceed with five jurors. A motion to dismiss was denied and the trial was reset for September 3 with a new jury. Cohens sought prohibition and this court issued a show cause order, staying proceedings below pursuant to Florida Rule of Appellate Procedure 9.100(f).

The scope of the double jeopardy clause of the Florida Constitution is the same as that of the federal protection. Carawan v. State, 515 So.2d 161 (Fla.1987). It has long been held that the government may bring a second prosecution where a mistrial has been occasioned by manifest necessity. United States v. Perez, 22 U.S. 579, 9 Wheat 579, 6 L.Ed. 165 (1824). Thus, the issue we must resolve is whether there was a manifest necessity justifying the mistrial. If so, the petitioner may be reprosecuted. If not, he must be discharged. "Manifest necessity" is a term which has not been given a bright line definition because of the variety of situations that arise in the course of trying cases. Where the reason for the mistrial relates to the unavailability of a critical prosecution witness or where the prosecution is attempting to use superior resources to harass the defendant, strict scrutiny is appropriate. On the other extreme, where the jury is deadlocked, great deference will be given to a conclusion that a mistrial is necessary. Where the factual situation falls in between the described extremes, a trial court's exercise of "sound discretion" is entitled to deference. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The state relies on State v. Sly, 459 So.2d 479 (Fla. 2d DCA 1984), where the court held that the unavailability of a critical state witness created a manifest necessity for the declaration of a mistrial.

Petitioner argues that there was no manifest necessity for a mistrial. Manifest necessity arises because of some misfortune which, although the fault of neither party, renders continuation of the trial impossible. Raszka v. Burk, 436 So.2d 255 (Fla. 4th DCA 1983), review denied, 446 So.2d 100 (Fla.1984). The trial was rescheduled for Friday even though it could have been conducted on Thursday, August 15. On Tuesday of that week, the court advised the attorneys that two of the jurors had personal conflicts on Friday, August 16. The jury was discharged even though the state had advised that it was prepared to try the case any day. No inquiry was made by the court as to the availability of any other day of the week to schedule the trial despite the willingness of both attorneys to proceed. Petitioner asserts no manifest necessity can exist absent a judicial inquiry and an opportunity for the defendant to cross examine the basis for the discharge of the jury. Ostane v. Hickey, 385 So.2d 110 (Fla. 3d DCA 1980). Petitioner characterizes the alleged reasons for discharge as nothing more than juror convenience and case management within a monthly trial term, which are not "manifest necessity." State ex rel. Wheeler v. Cooper, 157 So.2d 875 (Fla. 2d DCA 1963). Petitioner argues that the mistrial was an abuse of discretion. He had no hand in creating the conditions that led to the declaration of the mistrial, and alternate days for trial were available and requested by the defense.

There is little doubt that the unavailability of a critical state witness can create a "manifest necessity" which will allow a mistrial without prohibiting retrial. Nevertheless, in such situations the trial court is well advised to make an inquiry and create a record as to the nature of the witness' testimony, reason for the witness' unavailability, and if and when the witness will become available. See Routh v. United States, 483 A.2d 638 (D.C.Ct.App.1984); State v. Sanchez, 541 A.2d 455 (R.I.1988). As the respondent correctly points out, a "strict scrutiny" test should be applied by a reviewing court in this type of situation. Were that the only issue in this case, it is doubtful whether petitioner would be entitled to relief. Instead, the trial court decided to hold over the same jury and attempt to try the case within a reasonable time thereafter. The reasons for not trying the case on August 16, however, are not very compelling....

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18 cases
  • Hall v. State
    • United States
    • Florida Supreme Court
    • July 3, 2002
    ...See Carawan v. State, 515 So.2d 161, 164 (Fla.1987), superseded on other grounds by ch. 88-131, § 7, Laws of Fla.; Cohens v. Elwell, 600 So.2d 1224, 1225 (Fla. 1st DCA 1992). This Court has recognized well-settled jurisprudence relative to the Double Jeopardy [Double jeopardy] protects agai......
  • Trotter v. State
    • United States
    • Florida Supreme Court
    • August 22, 2002
    ...Carawan v. State, 515 So.2d 161, 164 (Fla. 1987), superseded on other grounds by § 775.021(4), Fla. Stat. (2001); Cohens v. Elwell, 600 So.2d 1224, 1225 (Fla. 1st DCA 1992). In Harris v. State, 645 So.2d 386, 388 (Fla.1994), this Court held that double jeopardy is not implicated in the cont......
  • Thomason v. State
    • United States
    • Florida Supreme Court
    • June 24, 1993
    ...with situations in which a trial participant becomes ill or absent and the trial court declares a mistrial. In Cohens v. Elwell, 600 So.2d 1224 (Fla. 1st DCA 1992), the court held that no manifest necessity existed for a mistrial after an essential witness became ill and jurors indicated a ......
  • Rodriguez v. State
    • United States
    • Florida District Court of Appeals
    • September 25, 1998
    ...requires an investigation into the viability of the alternatives. See Baez v. State, 699 So.2d 305 (Fla. 3d DCA 1997); Cohens v. Elwell, 600 So.2d 1224 (Fla. 1st DCA 1992). Here, the trial court entertained the possibility of a continuance, but rejected it as unfair to the jurors. We cannot......
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