Miles v. State, s. 81-496
| Decision Date | 04 August 1982 |
| Docket Number | Nos. 81-496,81-583,s. 81-496 |
| Citation | 418 So.2d 1070 |
| Parties | Stanley Eugene MILES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant was charged with two separate aggravated assaults, case numbers 78-1638 and 78-1749. On case number 78-1749, appellant was released on bail and notified to appear before the trial judge for a pre-trial conference on January 15, 1979. On case number 78-1638, appellant was released on his own recognizance and notified to appear before the trial judge for a pre-trial conference on January 15, 1979. Appellant failed to appear before the trial judge on January 15, 1979, and he was charged in case number 80-1589 with two counts of willfully failing to appear for his pre-trial conference. 1
Appellant moved for a statement of particulars and while the state responded, it provided nothing that distinguished count I from count II.
The defense then moved to dismiss the information on the ground that count II was identical to count I, but the motion was denied. On appeal, appellant has requested this court to vacate one of the judgments and sentences.
We agree with appellant's contention. Count II was identical in its language to AFFIRMED in part, REVERSED in part.
count I. The state did not supply any additional information distinguishing the two charges in its statement of particulars nor was the jury instructed that in count I appellant was charged with committing a separate and distinct crime from that charged in count II. Thus, it appears that appellant was twice charged with and later convicted of, the same crime. It is basic that one cannot be placed in jeopardy twice for the same offense. U.S.Const.Amend. V. There being nothing to distinguish count I from count II, the conviction for one must be vacated. Therefore, the conviction and sentence as to count I are AFFIRMED. As to count II, the conviction is REVERSED and the sentence VACATED.
COWART, J., concurs specially with opinion.
I agree with the conclusion and much of what is said in the majority opinion. I do not agree with the implications in the majority opinion that whether two certain offenses are "the same offense" within the constitutional double jeopardy prohibition can be correctly determined from an examination of the charging document alone. Charging documents may sometimes indicate that two accusations (charges) are based on separate and distinct statutory crimes or are based on two separate and distinct factual events thereby eliminating the application of the double jeopardy clause and permitting the accused to be placed in jeopardy of trials, convictions or sentences as to both. However, because of the criminal law principle that, in the absence of a statement of particulars, allegations in the charging document as to time are not of the essence and proof may relate to facts occurring at any time within the applicable statute of limitations, even allegations that facially appear to relate to different factual events may not do so upon examination of the proof offered in support of the allegations. For the same reason, it is even more dangerous to look at the accusatory document in an attempt to ascertain if two charges relate to the exact same factual event so as to bar jeopardy as to trials, convictions and sentences as to both. In referring to the failure of the statement of particulars in this case to make a factual distinction between the two charges, the majority opinion indicates some awareness of the danger, but the majority opinion does not give an adequate warning of the danger of comparing the allegations in charging documents in double jeopardy questions involving identity of offenses. We should clearly state that double jeopardy is a matter of fundamental substance and is grounded on the law and the facts and point out the limited value and reliability of the charging document as evidence of either the legal difference between the elements of statutory crimes charged or as an accurate indication of whether the actual facts underlying the charges relate to one or to two different and distinct factual events for double jeopardy purposes. The last sentence in Florida Rule of Criminal Procedure 3.140(o ), suggesting that a charging document is subject to dismissal if it is so vague, indistinct and indefinite as to expose the accused "after conviction or acquittal to substantial danger of a new prosecution for the same offense," is insufficient in scope to fully effectuate an accused's double jeopardy constitutional rights for several reasons. First, as explained above, the rule erroneously implies that the factual and legal questions involved in double jeopardy cases can be determined from the charging document or documents. Next, the rule relates only to the notion of "former jeopardy," which contemplates only a prior and a subsequent prosecution. However, the concept of double jeopardy not only includes such successive prosecutions, but also includes multiple simultaneous prosecutions by way of multiple informations consolidated for a single trial and, as in this case, multiple counts in one information, when such multiple informations or multiple counts relate to offenses which under proper legal analysis The essential question involved in this appeal is whether the two offenses charged in the two counts in information 78-1589 are "the same offense" within the meaning of constitutional double jeopardy. Any two offenses are "the same offense" within the constitutional double jeopardy prohibition if, (a) in law, both have the identical essential constituent elements 1 or all of the essential constituent elements of one offense are entirely included in the essential constituent elements of the other...
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Rodriquez v. State, 82-570
...sameness in both the statutory offense and the factual charges include Bell v. State, 437 So.2d 1057 (Fla.1983); Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982); Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981).9 See Fla.R.Crim.P. 3.150(a).10 See Fla.R.Crim.P. 3.151(a) and (b).11 Altho......
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Baker v. State
...twice with robbery, it is obvious that the court was using the word "offense" to relate to the factual event. In Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982), each count of the two count information charged a violation of the same statutory offense (willful failure to appear) relating......
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Flarity v. State
...essential element of every offense of which the accused can be convicted must be alleged in the charging document. See Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982), and the dissent in Collins v. State, 489 So.2d 188 (Fla. 5th DCA 1986). 14 In all probability, Flarity has by now alread......
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Giddings v. State
...the conclusion in that case, and in this case, is consistent with Borges and four earlier cases out of this court (Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981); Preston v. State, 3......