State ex rel. Seal v. Shepard

• Decision Date: 05 September 1974
• Docket Number: No. U--498,U--498
• Citation: 299 So.2d 644
• Parties: STATE of Florida ex rel. Robert C. SEAL, Petitioner, v. Clifford B. SHEPARD, as Judge of the Circuit Court of the Fourth Judicial Circuit, In and For Duval County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 644

299 So.2d 644

STATE of Florida ex rel. Robert C. SEAL, Petitioner, v. Clifford B. SHEPARD, as Judge of the Circuit Court of the Fourth Judicial Circuit, In and For Duval County, Florida, Respondent.

No. U--498.

District Court of Appeal of Florida, First District.

Sept. 5, 1974.

Louis O. Frost, Jr., Public Defender, and Steven E. Rohan, Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., T. Edward Austin and Earl M. Barker, Jr., Jacksonville, for respondent.

PER CURIAM.

In response to Suggestion for Writ of Prohibition filed herein by relator our Rule Nisi issued to which respondent has filed a return.

The facts of this case are virtually identical to those recited in an opinion of our sister court of the Second District, State ex rel. Miller v. Patterson, Fla.App.2d 1973, 284 So.2d 9, except that in the case sub judice it is apparent that the plea of guilty entered by the relator in the County Court which resulted in his conviction and sentence there was a result of plea bargaining entered into between the assistant state attorney and the relator's court-appointed counsel. The factual situation being so similar, we see nothing to be accomplished by lengthening this opinion by meticulous recitation of the facts sub judice; but adopt the reasoning and holding of our sister court.

We have carefully read and considered all of the cases cited by respondent and it is easy to understand how he was misled thereby. However, each of those cases predated Waller v. State, Fla.App.2d 1968, 213 So.2d 623, certiorari denied by the Supreme Court of Florida, 221 So.2d 749; reversed and remanded by the Supreme Court of the United States, 397 U.S. 387 90 S.Ct. 1184, 25 L.Ed.2d 435; again reconsidered by the Second District, 270 So.2d 26; certiorari denied by the Supreme Court of Florida, 276 So.2d 489; certiorari denied by the Supreme Court of the United States, with dissenting opinion, 414 U.S. 945, 94 S.Ct. 256, 38 L.Ed.2d 168. We find the Waller cases, and State ex rel. Miller v. Patterson, supra, dispositive of the issues here involved.

However, we feel one additional comment to be appropriate. As above recited, it is apparent that relator's trial and conviction in the County Court, notwithstanding that a felony charge was pending against him in the Circuit Court arising out of the identical set of circumstances, was a result of a plea bargaining. It is now urged before us that jeopardy did not attach as a result of the conviction in the County Court because that court was without jurisdiction of the matter. We observe that it is manifestly unjust for the State to extract by plea bargaining a plea of guilty to a lesser included offense in a county court and then assert when the same defendant is being prosecuted in the circuit court for an offense arising out of the identical act that the county court was without jurisdiction and that therefore jeopardy did not attach as an incident to the first conviction and sentence.

The Rule...