Le Rea v. Cochran
| Decision Date | 13 November 1959 |
| Citation | 115 So.2d 545 |
| Parties | Bennie LE REA, Petitioner, v. H. G. COCHRAN, Jr., Director, Division of Corrections, Respondent. |
| Court | Florida Supreme Court |
Ervin Buford & Pennington, Tallahassee, for petitioner.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.
Petitioner was placed on trial in the Circuit Court of Marion County under an information charging him with grand larcency of certain jewelry, 'the property of Keystone Jewelry Store, Ocala, Florida.' The evidence at that trial, which was held on November 1, 1957, showed without contradiction that the stolen property did not belong to Keystone Jewelry Store, Ocala, Florida, as alleged in the information, but, on the contrary, belonged to Keystone Jewelers, whereupon petitioner moved for and obtained a directed verdict of not guilty.
Immediately afterward, petitioner was rearrested on a second information charging him with grand larceny of certain jewelry, 'the property of Keystone Jewelers, a partnership consisting of J. W. Johnson and Dorothy Johnson,' to which he entered a plea of not guilty and went to trial without claiming former acquittal or former jeopardy by motion to quash or other defensive pleading. This trial resulted in an adjudication of guilt and five year sentence to the state prison. From this judgment and sentence petitioner appealed to the District Court, First District, and at that time raised the question of double jeopardy for the first time by assignment of error. The District Court affirmed without opinion.
Two questions are raised in this original habeas corpus proceeding in this Court. First, the question of double jeopardy and second (urged by the State), the right of petitioner to raise the question in habeas corpus proceedings.
It is not questioned that there was a fatal variance at the first trial arising because of the inability to prove ownership of the stolen property as named in the indictment, i. e. the proof showed the stolen property did not belong to the owner alleged in the information, Keystone Jewelry Store. 1
Petitioner was first tried for stealing property of a party named in the information to whom the property did not actually belong. In other words, it was not for stealing the property of the owner alleged in the second information, i. e. Keystone Jewelers, a partnership consisting of J. W. Johnson and Dorothy Johnson. Therefore, the acquittal under the first information did not bar prosecution under the second information. In order to sustain a plea of former jeopardy it must appear that there was a former prosecution in the same state for the same offense; that the same person was in jeopardy on the first prosecution; that the parties are identical in the same prosecution; and that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar to further prosecution. 2
The facts which convicted the petitioner under the second information, including the fact that the stolen jewelry belonged to Keystone Jewelers, a partnership consisting of J. W. Johnson and Dorothy Johnson, would not have sustained a conviction under the first information wherein the charge was made that the stolen property belonged to Keystone Jewelry Store, Ocala, Fla. Therefore, the acquittal under the first information did not stand as a bar to the second prosecution. 3
Florida Statutes, § 909.02, F.S.A., reads as follows:
'909.02 Certain pleas abolished; motion to quash substituted. Pleas to an indictment or information, other than pleas of nolo contendere, guilty, or not guilty, are abolished.
'All defenses heretofore available to a defendant by plea, other than pleas of nolo contendere and not guilty, shall be taken only by motion to quash the indictment or information, whether the same relate to matters of form or substance, former...
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State v. Beamon
...vests pursuant to Art. V, § 3(b)(3), Fla.Const., based upon conflict between that decision and the decisions of LeRea v. Cochran, 115 So.2d 545 (Fla.1959); State v. Bentley, 81 So.2d 750 (Fla.1955); and State v. Cootner, 60 So.2d 734 (Fla.1952), as will hereafter On december 19, 1972, the S......
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State v. Garofalo
...double jeopardy would not have prevented the state from prosecuting the crime charged in the second information. Le Rea v. Cochran, 115 So.2d 545 (Fla.1959), cert. den. 362 U.S. 946, 80 S.Ct. 867, 4 L.Ed.2d 865; T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978). Therefore, I do not believe t......
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State v. Katz
...record, the jury could have found (the defendants) not guilty on the actual merits of the case." 81 So.2d at 751. See also LeRea v. Cochran, 115 So.2d 545 (Fla.1959), cert. denied, 362 U.S. 946, 80 S.Ct. 867, 4 L.Ed.2d 865 Defendant Katz argues that since he did not affirmatively seek a jud......
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Wilcox v. State, s. 65-39
...presented to the trial court. The Supreme Court of Florida has had an occasion to rule upon a similar factual situation in Le Rea v. Cochran, Fla.1959, 115 So.2d 545. A petition for habeas corpus was presented where petitioner attempted to raise the issue of double jeopardy. Petitioner had ......