State v. Adjmi

• Decision Date: 29 December 1964
• Docket Number: No. 64-156,64-156
• Citation: 170 So.2d 340
• Parties: STATE of Florida, Appellant, v. Joseph ADJMI, Charles Adjmi, Emile Halfon, a/k/a John McGurney, and Albert George a/k/a Father Leon, Appellees.
• Court: Florida District Court of Appeals

Page 340

170 So.2d 340

STATE of Florida, Appellant, v. Joseph ADJMI, Charles Adjmi, Emile Halfon, a/k/a John McGurney, and Albert George a/k/a Father Leon, Appellees.

No. 64-156.

District Court of Appeal of Florida, Third District.

Dec. 29, 1964.

Rehearing Denied Jan. 19, 1965.

James W. Kynes, Jr., Atty. Gen., and Leonard R. Mellon, Asst. Atty. Gen., Richard E. Gerstein, State Atty ., and Joseph Durant, Asst. State Atty., for appellant.

Ulrich, Rubin & Berman, Miami Beach, and Hyman I. Fischbach, Miami, for Adjmi and Halfon.

Harvey J. St. Jean, Miami Beach, for George.

Before CARROLL, HORTON and HENDRY, JJ.

CARROLL, Judge.

This is an appeal by the State of Florida from an order of the criminal court of record of Dade County holding an initial information was abandoned by the later filing of ten other informations and that the latter were barred by the statute of limitations.

On April 27, 1960, a single count information charged the defendants below with larceny of money, checks and securities from one Genevra McAlister between the dates of September 1, 1959 and March 5, 1960. ¹

At trial the state presented evidence relating to fourteen separate larcenies. Motion by defendants to require the state to elect and limit prosecution to one was denied. A conviction resulted, which this court affirmed on the 'single impulse theory'. See Adjmi v. State, Fla.App., App.1962, 139 So.2d 179, 185. On certiorari, the Supreme Court of Florida quashed our decision, and ordered that the judgment be reversed and the cause remanded with directions to the trial court to grant a new trial. Adjmi v. State, Fla.App., 1963, 154 So.2d 812, 819-820. Our mandate was issued accordingly. Adjmi v. State, Fla.App.,App.1963, 154 So.2d 820.

After the remand and before proceeding with the new trial the state filed ten additional informations on August 2, 1963, each charging one of the larcenies encompassed by the initial information and for which proof had been offered at the first trial. They were so regarded in the briefs and argument, and no contention is made that the offenses separately charged in the new informations were not among those sought to be proved under the initial information on the first trial. ²

The trial judge granted defendants' motions to quash and entered the order appealed from, which, as stated above, held that the initial information was abandoned and that the new informations were barred by the statute of limitations. In so holding the able trial judge was in error, and we reverse.

In the opinion by the Supreme Court in this case (154 So.2d 812), it was held that this series of larcenies, from the same owner at different times and places, constituted separate and distinct offenses; that the 'single impulse theory' had been rejected earlier in Campbell v. State, 155 Fla.App., 359 20 So.2d 127; and that at the trial (on the single count information) the state should ahve been required to specity 'which one of the several transactions it elected to stand on'. ³

The effect of the reversal of the judgment of conviction and the remand for new trial left the case standing as if the judgment had not been rendered, and restored the cause to the position it held before the first trial. Ex parte Livingston, 116 Fla.App., 640, 156 So. 612; Kaminski v. State, Fla.App., 1954, 72 So.2d 400.

By remanding the cause for new trial, the Supreme Court necessarily treated the initial information as being sufficient for prosecution of one, but only one, of the larcenies provable thereunder as the state should elect. But it was made equally clear that in order to prosecute the others which the initial information concerned, it would be necessary to charge such offenses in separate counts or informations.

The several transactions occurred on various dates between November of 1959 and March of 1960. The initial information, filed in April of 1960 was well within the two-year limitation period. § 932.05 Fla.App.,Stat., F.S.A. The ten later informations, filed August 2, 1963, more than two years after the offenses, would be barred by the statute of limitations unless they were in continuation of the initial prosecution, which had been instituted timely.

It is our opinion that the holding of the trial court that the subsequent ten informations were barred by the statute of limitations was in error because it sufficiently appeared they were in continuation of the original cause. This was disclosed by the circumstances of the case (the need, after remand to separately charge the several offenses encompassed by the initial single count information) and from statements in the new informations linking them with the first. ⁴ Rouse v. State, 44 Fla.App., 148, 32 So. 784; Horton v. Mayo, 153 Fla.App., 611, 15 So.2d 327; Mead v. State, Fla.App.,1958, 101 So.2d 373; State v. Emanuel, Fla.App.,App.1963, 153 So.2d 839.

In Mead v. State, supra, the Supreme Court held a subsequent information was so barred because 'there was nothing in the last information to link it with the first'. That case and the others cited above stand as authority for the proposition that such informations will not be subject to the statute of limitations when they are shown to be connected with and in continuation of a prosecution timely begun.

In the instant case the statements in the new informations, 'linking them with the first', hardly could have been stronger or more definite. Under the cases cited above such statements in the new informations of their 'linkage' with the first were enough to show they were connected with and in continuation of the original prosecution and thereby to take them out of the statute. Appellees' argument that such a statement in an information alone does not establish that fact so as to avoid the statute of limitations, is without merit here. This is so because in addition the new informations were aided by the showing that the transactions alleged therein were among those which had been proved upon the first trial under the initial information. We hold that the added ten informations were shown to be linked with the first and a continuation of the prosecution which had been timely instituted, and, therefore, that the ten added informations were not barred by the statute of limitations.

The state contends, and we agree, that the trial court was in error in holding that the filing of the ten new informations was an abandonment of the initial information. There is respectable authority for the proposition that the filing of a new indictment or information for an offense charged or included in the first leaves both standing and permits prosecution to proceed under either, where the first has not been quashed or dismissed. ⁵ See Eldridge v. State, 27 Fla.App., 162, 9 So. 448; Knight v. State, 42 Fla.App., 546, 28 So. 759; United States v. Strewl, 2 Cir.1938, 99 F.2d 474, cert. den., 306 U.S. 638, 59 S.Ct. 489, 83 L.Ed. 1039; Morlan v. United States, 10 Cir.1956, 230 F.2d 30; State v. Janiec, 20 N.J.Super. 471, 90 A.2d 98; People v. Schildhaus, 15 Misc.2d 377, 180 N.Y.S.2d 377.

Thus, in this case, the new trial could have proceeded on the initial...