Raszka v. Burk

• Decision Date: 20 July 1983
• Docket Number: No. 83-712,83-712
• Citation: 436 So.2d 255
• Parties: Michael David RASZKA, Petitioner, v. Richard B. BURK, Honorable Judge of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 255

436 So.2d 255

Michael David RASZKA, Petitioner, v. Richard B. BURK, Honorable Judge of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent.

No. 83-712.

District Court of Appeal of Florida Fourth District.

July 20, 1983.

Rehearing Denied Aug. 30, 1983.

James L. Eisenberg of Green, Eisenberg & Cohen, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.

HERSEY, Judge.

This petition for a writ of prohibition arises as a result of an impasse in a plea bargain negotiated by one of two defendants on a charge of trafficking in marijuana. On May 3, 1982, the trial of petitioner and his codefendant Burns commenced as the jury was selected and sworn and counsel made their opening statements. Before reconvening the following day, the state offered petitioner a plea bargain under the terms of which he would testify against the codefendant. Petitioner's counsel informed the court "we have accepted the plea ...." Thereupon, the trial court declared a mistrial in accord with the respective requests and consent of both the prosecutor and the codefendant's counsel. The jury was dismissed. Subsequently, petitioner decided not to accept the plea bargain. However, petitioner now contends he cannot be tried because it would violate the fifth amendment prohibition against double jeopardy.

The fifth amendment clearly prohibits placing any person in jeopardy of life or limb twice for the same offense. Likewise the law is well settled that jeopardy attaches when the jury is impaneled and sworn in. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Rich, 589 F.2d 1025, 1028 (10th Cir.1978); United States v. Fay, 553 F.2d 1247 (10th Cir.1977); Foster v. United States, 339 F.2d 188 (10th Cir.1964).

Certainly it is clear beyond question that the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in all circumstances, to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense. Thus, for example, reprosecution for the same offense is permitted where the defendant wins a reversal on appeal of a conviction. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); see Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, 205 (1957). The determination to allow reprosecution in these circumstances reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. But it is also clear that recognition that the defendant can be reprosecuted for the same offense after successful appeal does not compel the conclusion that double jeopardy policies are confined to prevention of prosecutorial or judicial overreaching. For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his "valued right to have his trial completed by a particular tribunal." See Wade v. Hunter, 336 U.S. , at 689, 69 S.Ct. , at 837.

If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat. , at 580 . [Emphasis supplied by this court.]

United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971).

A valid reason for declaring a nonconsensual mistrial must be predicated on either of two bases:

(1) [Manifest necessity which arises because of] some misfortune which, although the fault of neither party, renders continuation of the trial impossible or unreasonably prejudicial to the substantial interest of either the judicial process itself, the defendant, the state, or both, or (2) [defense provocation which is based] upon some unfair or wrongful tactic, action or conduct on the part of the defendant, by which a substantial interest in the state is unfairly frustrated or embarrassed.

Spaziano v. State, 429 So.2d 1344, 1346 (Fla. 2d DCA 1983), quoting State ex rel. Mitchell v. Walker, 294 So.2d 124, 127 (Fla. 2d DCA 1974).

It is clear that, had petitioner Raszka accepted the plea and testified against his codefendant, the codefendant would have a right to a mistrial on grounds of manifest necessity. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) (manifest necessity to order discharge of jury to meet the ends of public justice); Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (mistrial, properly based on trial judge's assessment of the prejudicial impact of defense counsel's opening statement, constitutes manifest necessity); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949) (court-martial proceeding properly terminated because of military necessity); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891) (where juror lied regarding acquaintance with defendant, possible juror...