Kilpatrick v. State, 71--1191
| Decision Date | 23 May 1972 |
| Docket Number | No. 71--1191,71--1191 |
| Citation | 262 So.2d 472 |
| Parties | Gerald KILPATRICK, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Lewis S. Kimler, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Arnold R. Ginsberg, Asst. Atty. Gen., for appellee.
Before PEARSON and HENDRY, JJ., and LESTER, M. IGNATIUS, Associate Judge.
The defendant, Gerald Kilpatrick, was charged on a two count information for aggravated assault. The defendant was granted a new trial after a jury had acquitted him on one count and convicted him of the other count. The defendant moved for a mistrial after the discharge of the jury when two of the jurors made it known to the trial court that they would have found the defendant not guilty on both counts if they had considered self defense in their deliberations, but since there was no other choice other than guilty or not guilty they found the defendant guilty.
The court granted the motion for mistrial. Over the defense counsel's objections the information was amended to include assault with intent to commit murder and the state proceeded to trial. The trial judge instructed the jury on lesser included offenses contained in assault with intent to commit murder in the first degree and defense counsel objected to the inclusion of such an instruction. The defendant was found guilty of assault with intent to commit murder in the second degree. Appealing therefrom, defendant contends the trial court committed error by allowing the information to be amended so as to change the nature, identity or degree of the original offense or to add another offense; by permitting the state to retry the defendant for higher degrees of the sames offenses or for a higher offense than that which he was convicted; and by instruction the jury on lesser included offenses after the defendant objected to such instructions.
We find that double jeopardy did not attach in this case. However, the accused can only be retried for the offenses for which he was convicted. While the new information and retrial are proper they are subject to the axiom that the accused can only be retried for the offense of which he was convicted before the mistrial. Ray v. State, Fla.1970, 231 So.2d 813. Due process of law requires that vindictiveness against a defendant who, having successfully attacked his first conviction, must play no...
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...that the respective application for modification was filed. But it is obvious that each case was based on the determination, as stated at 262 So.2d 472, that "(t)he evidence is clear that the needs of the children existed as of the date of the filing of the petition." That is not true of th......
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Scott v. State, 74--569
...Fla.App.1970, 241 So.2d 205; Cox v. State, Fla.App.1971, 243 So.2d 611; Roberson v. State, Fla.1971, 258 So.2d 257; Kilpatrick v. State, Fla.App.1972, 262 So.2d 472. Here the court made no findings or recitation of matters such as would justify the greater sentences on the 'new trial'. Whil......
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Bloom v. Bloom, 85-2200
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