Lanier v. State
| Decision Date | 26 August 1969 |
| Docket Number | No. L--322,L--322 |
| Citation | 226 So.2d 37 |
| Parties | Harold Vane LANIER, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Upchurch & Upchurch, St. Augustine, for petitioner.
Earl Faircloth, Atty. Gen., and James McGuirk, Asst. Atty. Gen., for respondent.
Petitioner seeks review by certiorari of a judgment rendered by the Circuit Court of St. Johns County in its appellate capacity which affirmed a judgment of conviction and sentence rendered by the County Judge's Court of that county. It is contended that the judgment assaulted constitutes a departure from the essential requirements of law and should be quashed.
During a routine check petitioner was arrested for the offense of driving a motor vehicle on the highways of this state without a valid driver's license. 1 To this charge petitioner pleaded guilty, was adjudged guilty and thereafter discharged the sentence imposed upon him.
It was subsequently discovered by the law enforcement officials that, at the time of petitioner's arrest, a Florida driver's license theretofore issued to him had been suspended and had not been restored. As a result of this information, petitioner was charged in a new information with the offense of operating a motor vehicle upon the highways of this state at a time when his driver's license was suspended, contrary to the provisions of law. 2 To this second charge petitioner interposed a defense of former jeopardy, contending that the offense of operating a motor vehicle without a valid license is a lesser offense necessarily included in the more serious offense of operating a vehicle at a time when the driver's license is under suspension. Such defense was rejected by the trial court and petitioner was found guilty as charged. The judgment of conviction was appealed to the circuit court which affirmed the conviction, and it is that judgment which is before us for review.
Appellant argues with considerable logic that one guilty of operating a motor vehicle at a time when his driver's license is either revoked, cancelled or suspended is, as a matter of law, guilty of operating his vehicle without a valid driver's license. He reasons therefore that the statutory offense of driving without a valid license is a lesser offense included within the greater offense of driving while the operator's license is revoked, cancelled or suspended. On this premise appellant contends that since he has been charged and adjudged guilty of the lesser offense, he cannot now lawfully be charged and convicted of the greater offense under the established principle of law that:
'As a general rule, whether a person accused of a minor offense is acquitted or convicted, he cannot be charged again on the same facts in a more aggravated form.
'It is also the almost universally accepted doctrine that a acquittal or a conviction for a minor, or lesser, offense included in a greater will bar a prosecution for the greater, if on an indictment for the greater accused could be convicted of the lesser.' 3
We have carefully considered the theory advanced by appellant but reluctantly reach the conclusion that it is based upon a false premise and must therefore be rejected.
The latest and most comprehensive discussion of the rule of law applicable to a defense of former jeopardy is stated by the Second District Court of Appeal in its recent decision of State v. Shaw. 4 In that case the court said:
'To constitute double jeopardy, it is not enough that the second prosecution arises out of the Same facts as the first, but the second prosecution must be for the Same offense. * * *
'The precise point here involved may be still further narrowed. If the facts which would convict on one prosecution would not necessarily have sustained conviction on another prosecution for the crime there charged, then the first prosecution could not stand as a bar to the second, although the offenses...
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Brewer v. State
...at 479--480. See also: McHugh v. State, 160 Fla. 823, 36 So.2d 786 (1948), State v. Shaw, 219 So.2d 49 (Fla.App.1969), Lanier v. State, 226 So.2d 37 (Fla.App.1969). These pre-Ashe principles no longer hold in light of the Ashe decision. We concur with the District Court's determination in t......
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State v. Medina
...State v. Carpenter, 1 Ariz.App. 522, 405 P.2d 460 (1965); State v. Boening, 63 N.J.Super. 588, 165 A.2d 203 (1960); Lanier v. State, 226 So.2d 37 (Fla.App.1969); State v. McLaughlin, 121 Kan. 693, 249 P. 612 (1926); Burnett v. Commonwealth, 284 S.W.2d 654 (Ky.1955); State v. Schneller, 199 ......
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Duff v. State
...same core offense — unlawfully driving without a license. Id. at 1281. However, it noted conflict on this point with Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969). Lanier held the offenses of driving without a valid driver's license and driving while license suspended constituted "separ......
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State v. Ormsby
...grounds, other jurisdictions have reached the same result. See, State v. Handy, 74 N.J.Super. 294, 181 A.2d 203 (1962); Lanier v. State, 226 So.2d 37 (Fla.App.1969). ...