Green v. State
| Decision Date | 17 January 1984 |
| Docket Number | No. 82-1672,82-1672 |
| Citation | 450 So.2d 509 |
| Parties | Vincent GREEN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
Before HENDRY, BASKIN and FERGUSON, JJ.
While on probation for another offense, defendant Green was charged by an information with possession of burglary tools, attempted burglary and criminal mischief. These offenses were also named in the affidavit charging that Green violated his probation. The court conducted the probation violation hearing first and found that the evidence failed to eliminate his doubt and was insufficient to justify revocation of Green's probation. The judge explained that he had held the state to the same high burden in the probation revocation proceeding that it had at trial, that is, to prove the case beyond a reasonable doubt. Green then sought dismissal of the information upon collateral estoppel grounds. The trial court denied his motion and the case proceeded to jury trial. The jury returned verdicts finding Green guilty of the charged offenses. This appeal ensued.
The issue to be decided, and which we certify as a question of great public importance, is:
"When, in a probation revocation proceeding, a trial judge finds that the evidence is insufficient to prove the criminal offense asserted as the ground for revocation, is the state collaterally estopped from trying the defendant for the same criminal offense?"
We answer the question negatively and affirm the trial court's decision. Although we recognize that People v. Kondo, 51 Ill.App.3d 874, 9 Ill.Dec. 479, 366 N.E.2d 990 (1977) and State v. Bradley, 51 Or.App. 569, 626 P.2d 403 (1981) reach the opposite conclusion, we are persuaded by Florida cases which have already addressed aspects of the issue.
In State v. McCord, 402 So.2d 1147 (Fla.1981), the Supreme Court, noted the rule of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) that "[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." The court held that collateral estoppel applies against the state under fifth amendment protections against double jeopardy only if jeopardy attached in the first proceeding. Subsequently, in State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983), another appellate court reversed a dismissal of charges following a finding that no probation violation had...
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State v. Justice, 83-2126
...estoppel required dismissal. The trial court granted the motion and the state appealed. On appeal the state argues that Green v. State, 450 So.2d 509 (Fla. 3d DCA 1984) and State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983), support reversal. We In State v. Jones, the state appealed the tria......
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Green v. State
...respondent. OVERTON, Justice. This is a petition to review a decision of the Third District Court of Appeal reported as Green v. State, 450 So.2d 509 (Fla. 3d DCA 1984), in which the district court held that a determination, at a probation revocation hearing, that the evidence of the instan......
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Garcia v. State, 96-2092
...Before BARKDULL, NESBITT and GERSTEN, JJ. PER CURIAM. Affirmed. Smith v. State, 502 So.2d 77 (Fla. 3d DCA 1987); Green v. State, 450 So.2d 509 (Fla. 3d DCA 1984), app'd, 463 So.2d 1139 (Fla.1985); State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983); Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA ...
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State v. Romans, 83-1880
...1056 (Fla. 2d DCA 1984), and on the authority and reasoning of Justice, we reverse. The Justice court relied in part on Green v. State, 450 So.2d 509 (Fla. 3d DCA 1984), and certified to the Florida Supreme Court as a question of great public importance, the question certified by the Green ......