Hernandez v. State

• Decision Date: 07 April 1981
• Docket Number: EE-490 and EE-401,Nos. GG-25,s. GG-25
• Citation: 397 So.2d 715
• Parties: Rolando Otero HERNANDEZ, Appellant, v. STATE of Florida, Appellee. Robert ROSENBLATT, Appellant, v. STATE of Florida, Appellee. William CLAY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 715

397 So.2d 715

Rolando Otero HERNANDEZ, Appellant, v. STATE of Florida, Appellee.

Robert ROSENBLATT, Appellant, v. STATE of Florida, Appellee.

William CLAY, Appellant, v. STATE of Florida, Appellee.

Nos. GG-25, EE-490 and EE-401.

District Court of Appeal of Florida, First District.

April 7, 1981.

Rehearing Denied May 19, 1981.

Paul Morris and Bennett H. Brummer, Asst. Public Defenders, Miami, for appellant Hernandez.

Louis M. Jepeway, Jr., of Jepeway & Jepeway, Miami, for appellants Rosenblatt and Clay.

Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

LILES, WOODIE A. (Retired), Associate Judge.

"Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a 'universal maxim of the common law.' It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles "of reason, justice, and conscience, of which Cicero said: 'Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same.' " Bartkus v. Illinois, 359 U.S. 121, 151-154, 79 S.Ct. 676, 695-697, 3 L.Ed.2d 684 (1959).

Laudatory and true as these words appear, they were uttered in the dissent by Justice Black. Justice Frankfurter, along with a majority of the Court, having ruled otherwise, said, quoting from Moore v. Illinois, 55 U.S. (14 How.) 13 (1852), at 20, 14 L.Ed. 306:

"Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both."

The majority went on to hold that under the doctrine of dual sovereignty, one may in fact be placed twice in jeopardy without being deprived of his constitutional protection. This is true, said the Court, for the reasons that the Fifth Amendment is not applicable to the states and that both federal and state judicial systems needed to be free "to develop a rational and just body of criminal law," which would be accomplished by adhering to the dual sovereignty doctrine rather than extending the application of the Fifth Amendment to the states. 359 U.S., at 138, 79 S.Ct., at 686.

This Court is called upon by the appellant here to set aside and vitiate the doctrine of dual sovereignty by recognizing that the holding in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), has been overruled in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) wherein the Fifth Amendment was applied to the states through the Fourteenth Amendment. Indeed, the decisions in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), also seem to imply a broad rejection of the dual sovereignties theory. ¹ In those cases the court "rejected the dual sovereignty argument and allowed a defendant in one sovereignty to assert rights based on the actions of another sovereignty's officials." People v. Cooper, 398 Mich. 450, 247 N.W.2d 866, 869 (1975). In view of Supreme Court decisions subsequent to Benton, however, we must restrain ourselves from the temptation to declare that Bartkus no longer governs. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), wherein the Court reaffirmed the Bartkus holding.

We are convinced that the Fifth Amendment bar against double jeopardy, as well as the prohibition against double jeopardy found in Article I, Section 9, of the Constitution of the State of Florida, often has been an illusory protection. This is so in spite of the rhetorically stated adherence to the protection as well as the pronouncement in Benton, supra. We can, however, take comfort in the Supreme Court's decision in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), wherein Justice Burger denied that the doctrine of dual sovereignty applied as between a state and its municipalities, which were fictional sovereignties at best. In our view, this opinion overruled the Supreme Court of Florida's opinions in Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894), and Hilliard v. City of Gainesville, 213 So.2d 689 (Fla.1968), and the opinion in which this author joined in Waller v. State, 213 So.2d 623 (Fla. 2nd DCA 1968), all of which alluded to the permissibility of successive municipal state prosecutions arising from the same criminal incident. ²

The instant case presents this Court with the age old problem of determining, under the circumstances, whether Rolando Otero Hernandez has been denied the constitutional protection, guaranteed by the Fifth Amendment of the United States Constitution and Article I, Section 9, of the Constitution of the State of Florida, against twice being placed in jeopardy for the same offense. On August 30, 1976, a thirty-nine count information was filed against Hernandez in the Eleventh Judicial Circuit. ³ He had previously been indicted and tried in the Federal District Court for the Southern District of Florida. Among the federal charges of significance to this opinion were conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 844(i) (1976), attempt to destroy property with an explosive in violation of 18 U.S.C. § 844(i) (1976), and possession of a destructive device in violation of 26 U.S.C. § 5861(d) (1976). With regard to the placement of bombs in the Miami International Airport, these charges cumulatively carried a potential twenty-five year prison sentence. These charges were repeated in each of numerous counts accusing appellant of placing bombs in various and sundry public buildings in and around the City of Miami, in addition to the airport. On August 24, 1976, appellant was acquitted of all federal charges. The State then filed and proceeded to trial on its thirty-nine count information and appellant was acquitted of all but five counts stemming from the airport incident:

Count 1 : unlawful possession of explosive in violation of Section 552.22, Fla.Stat., punishable up to fifteen years' imprisonment.

Count 10 : unlawful possession of explosive in violation of Sections 552.101, 552.22, Fla.Stat., punishable up to five years' imprisonment.

Count 21 : attempted first degree murder in violation of Sections 782.04 and 777.04, Fla.Stat., punishable up to thirty years' imprisonment.

Count 26 : first degree arson in violation of Section 806.01(1), and 775.087(2), Fla.Stat., punishable up to thirty years' imprisonment.

Count 32 : unlawfully discharging destructive device in violation of Section 790.161(2), Fla.Stat., punishable up to thirty years' imprisonment.

The maximum potential sentence faced by appellant upon conviction of these five counts totalled 110 years.

Prior to the trial, Hernandez sought to have the charges dismissed for the reason that his prosecution was barred by the federal and state prohibitions against double jeopardy. The trial judge heard argument, requested briefs, and ruled that the second trial was not prohibited. We believe the trial judge's ruling was correct, but we do not adopt his reasoning.

If this were a case which required affirmance based solely on a strict application of the doctrine of dual sovereignty, this Court would be inclined to follow the approach enunciated first in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), and later adopted in People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1975). In Cooper the Michigan Supreme Court, although recognizing that the concept of dual sovereignty may sometimes aid in maintaining a strong state as well as federal system of justice, expressed the view that Justice Frankfurter's reasoning in Bartkus had been seriously eroded by Benton, and voiced a preference for Justice Black's dissent in Bartkus, as the Pennsylvania Supreme Court had done in Mills. The court in Cooper went on to observe "that persons convicted in federal court only very rarely are prosecuted in state courts for offenses arising out of the same criminal act," offering in explanation that the interests of the federal and state governments in prosecuting a criminal act frequently coincide. Cooper, 247 N.W.2d at 870. The Mills court had concluded its analysis by stating that in the future, prosecution by the State of Pennsylvania would not be permitted unless it appeared from the record that the interests of that state were substantially different from those of the initial prosecuting jurisdiction, and the Cooper court followed suit.

We have qualified our approval of these decisions, though, because in the instant case we lack the above-mentioned coincidence of interests. ⁴ The state information on its face indicates the divergence of the federal and state interests in this case. The federal charges, as can be seen, were for conspiracy to commit an offense against the United States and attempt to destroy property with explosives, as well as possession of a destructive device; and while those violations overlap the state charges to some...