Greene v. State, s. 72--214 and 72--223

• Decision Date: 25 October 1974
• Docket Number: Nos. 72--214 and 72--223,s. 72--214 and 72--223
• Citation: 302 So.2d 202
• Parties: Richard Austin GREENE, Appellant, v. STATE of Florida, Appellee. Jose Manuel SOSA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 202

302 So.2d 202

Richard Austin GREENE, Appellant, v. STATE of Florida, Appellee.

Jose Manuel SOSA, Appellant, v. STATE of Florida, Appellee.

Nos. 72--214 and 72--223.

District Court of Appeal of Florida, Fourth District.

Oct. 25, 1974.

A. Dallas Albritton, Jr., Tampa, for appellant-Greene.

Arnold D. Levine, Tampa, for appellant-Sosa.

Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.

OWEN, Chief Judge.

Appellants were convicted on January 15, 1972 of first degree murder and each sentenced to life imprisonment. Their respective appeals were consolidated in this court and we treated the brief as being on their joint behalf. Although three points were raised none merit reversal, and only the first merits any discussion.

Part of the early history of this case is succinctly set forth in the specially concurring opinion of Justice Ervin in the case of Sosa v. State, Fla.1968, 215 So.2d 736, at 737, which we quote as follows:

'The appellants, Jose Manuel Sosa and Richard Austin Greene, were indicted on September 7, 1965 for the murder of Nicanor Martinez. The indictment charged that Sosa, from a premeditated design to effect the death of Nicanor Martinez did hire, procure, aid, abet and counsel Richard Greene to murder said Nicanor Martinez. Greene was charged with the premeditated murder of Nicanor Martinez by Shooting him with a pistol. On November 25, 1965 after a joint trial in the Circuit Court for Hillsborough County, Florida, the jury returned verdicts finding both appellants guilty of first degree murder, without recommendation of mercy, and the court sentenced each appellant to death.'

In the cited case, appellants' November 25, 1965 convictions were reversed, the Supreme Court's per curiam decision stating, in its entirety, for following:

'After a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial. The judgments are accordingly reversed and remanded for a new trial.'

Upon remand from that decision, appellants filed their motion to transfer jurisdiction of the case to the Criminal Court of Record of Hillsborough County, a court having non-capital felony jurisdiction. The essence of the motion was that the Supreme Court's reversal of their conviction on insufficiency of the evidence required (under the principle of double jeopardy) that appellants not again be tried for the capital felony. The motion to transfer jurisdiction was denied, but a change of venue was granted and the retrial of the first degree murder charges was held in the Circuit Court of Orange County, Florida.

Appellants' first point is that under the double jeopardy protection of the state and federal constitutions, as well as the doctrine of res judicata, it was error to retry appellants on the charge of first degree murder when their...