McLendon v. State
| Decision Date | 24 September 1954 |
| Citation | 74 So.2d 656 |
| Parties | Oris McLENDON and William Bradshaw, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James D. Welch, Ft. Lauderdale, for appellants.
Richard W. Ervin, Atty. Gen., Mark R. Hawes, Asst. Atty. Gen., and Moie J. L. Tendrich, Sp. Asst. Atty. Gen., for appellee.
The sole question presented in this case is that of former jeopardy. It appears that the appellant was charged in separate informations concerning armed and unarmed robbery. He made a demand upon the County Solicitor for a list of the witnesses to be used in each case against him. When the first case was called for trial, the jury had been sworn and the State called its first witness by the name of Joseph H. Ehrlich. Before he could testify, counsel for the defendant stated that the list of witnesses furnished by the State did not contain that of Mr. Ehrlich. The Court advised counsel that he had the wrong case. The County Solicitor then said, 'If they want a mistrial, it is alright with me.' The attorney for the defendant then said, 'As an alternative to a mistrial we ask for twenty-four hours or something.' Co-counsel for the defendant then said, 'We ask for a directed verdict in favor of the defendants.' The following proceedings then book place:
'Mr. Farrington: Let the record clearly show that they objected to proceed with the trial because of an erroneous list of witnesses being furnished them, which list of witnesses was for another case pending in the same Court, against the same defendants; through an error in numbers an erroneous list was furnished the defendants, counsel for the defense stated he was surprised and was not prepared to defend the case against the defendants with the list of witnesses furnished him, that is Cases Nos. 9222 and 9223.
'They moved for a mistrial and the Court declared a mistrial.
'The jury was then excused.'
When the case was later called for trial, motions, oral and verbal, to quash on the ground of former jeopardy were interposed. These motions were denied by the Court. In disposing of these motions, the following proceedings were had:
'Mr. Farrington: I would like the Court to state its reasons for granting the Motion for a Mistrial on October 20, 1953.
'Court: The Court states that the Motions for a Mistrial...
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...164 Cal Rptr 1, 609 P2d 468); People v Ortiz, 196 Colo 438, 586 P2d 227; Braxton v United States (Dist Col App) 395 A2d 759; McLendon v State (Fla) 74 So 2d 656; v Kirk (Fla App Dl) 362 So 2d 352; State v Pulawa, 58 Hawaii 377, 569 P2d 900, cert den 436 US 925, 56 L Ed 2d 758, 98 S Ct 2818;......
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Turner v. State, No. SC08-975 (Fla. 5/20/2010)
...or because of a manifest, urgent, or absolute necessity, jeopardy does not attach and the defendant may be retried. McLendon v. State, 74 So. 2d 656 (Fla. 1954); State ex rel. Larkins v. Lewis, 54 So. 2d 199 (Fla. 1951). An exception occurs when the prosecution goads the defense into moving......
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State v. Kirk
...been granted with his consent, approval or upon his motion. E. g. State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951); McLendon v. State, 74 So.2d 656 (Fla.1954); Reyes v. Kelly, 204 So.2d 534 (Fla. 2 DCA 1967). However, the United States Supreme Court has recognized that where a defend......
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State v. Dowthard
...(Defendant moved for mistrial because of material, prejudicial variance between indictment and proof); McLendon v. State, 74 So.2d 656 (Fla.Supp.Ct.1954) (Defendant moved for mistrial on the ground that the state furnished an erroneous list of witnesses to be used against Him); Kamen v. Gra......