State v. Conrad

• Citation: 243 So.2d 174
• Decision Date: 27 January 1971
• Docket Number: No. 70--494,70--494
• Parties: STATE of Florida, Appellant, v. Harry CONRAD, a/k/a Jessie Mclver, Appellee.
• Court: Court of Appeal of Florida (US)

Page 174

243 So.2d 174

STATE of Florida, Appellant, v. Harry CONRAD, a/k/a Jessie Mclver, Appellee.

No. 70--494.

District Court of Appeal of Florida, Fourth District.

Jan. 27, 1971.

Earl Faircloth, Atty. Gen., Tallahassee, Rodney Durrance, Jr., Asst. Atty. Gen., West Palm Beach, and David M. Porter, County Sol., and Norman A. Tharp, Asst. County Sol., Titusville, for appellant.

Robert G. Ferrell, III, Public Defender and Franklin D. Kelley, Asst. Public Defender, Titusville, for appellee.

OWEN, Judge.

In this case a criminal information charging appellee with a felony was dismissed by the Court of Record of Brevard County because it determined that appellee's prior municipal court conviction for ordinance violation constituted former jeopardy under the rationale of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). We conclude that on the facts of this case neither of the cited cases are applicable and that the court erred in entering the order here appealed.

The criminal information which the County Solicitor of Brevard County had filed against appellee was in two counts, the first count charging appellee with breaking and entering a building with intent to commit a felony, to-wit: larceny of a 1970 Plymouth automobile, and the second count charging appellee with larceny of the same automobile.

Appellee moved to dismiss the criminal information on the grounds of former jeopardy. In support of the motion it was shown that theretofore the appellee had been charged in the Municipal Court of the City of Melbourne of the offense of unlawfully taking and using the same 1970 Plymouth automobile without the owner's consent, to which charge he had pled guilty and had been convicted and sentenced to a term in the city jail. At the hearing on the motion to dismiss the foregoing matters were stipulated by counsel. Likewise, in order that the facts be considered in proper perspective, the prosecutor represented to the court that evidence would establish that appellee had broken and entered the building of an automobile dealer, had stolen the 1970 Plymouth automobile, and was subsequently apprehended by Melbourne police while in the possession of the automobile. The prosecutor conceded that the offense involved in the municipal court conviction was a lesser offense included within the larceny count of the criminal information, Wright v. State, Fla.App.1968, 216 So.2d 229 (modified on other grounds, 224 So.2d 300), and that the appellee's plea of double jeopardy as to the larceny count was well founded. Hence, on this appeal the issue for our consideration has been limited to the question of whether the municipal court conviction is a bar to prosecution of the charge of breaking and entering with intent to commit a felony.

A brief word concerning Waller v. Florida, supra. The effect of the decision in that case was to abolish the 'dual sovereignty' theory which had theretofore existed in this jurisdiction under which a person could be tried by both the municipal government and the State of Florida for the identical offense without violating the constitutional prohibition against double jeopardy. Waller held that a municipal court and a state court of the same state were courts of the same sovereignty and that the conviction or acquittal of a defendant in a municipal court was a bar to the prosecution of such defendant in the state court for the identical offense. The decision did not otherwise affect existing law in this jurisdiction as it pertains to double jeopardy. In fact, the decision was expressly premised upon the assumption that the ordinance violations were included offenses of the felony charge. (397 U.S. 436, 90 S.Ct. at 1186, 25 L.Ed.2d 469) Thus, while a municipal court judgment can, in a state court prosecution, constitute former jeopardy within the meaning of the constitutional prohibition the law remains unchanged that it is a bar to a subsequent prosecution of the same person only as to the identical offense.

It has been held many times in this jurisdiction that the charge of breaking and entering with intent to commit a specified felony, and a charge for having committed or having attempted to commit the same specified felony, are two separate and distinct offenses. Steele v. Mayo, Fla.1954, 72 So.2d 386; Goodwin v. State, 1946, 157 Fla. 751, 26 So.2d 898; Taylor v. State, 1939, 138 Fla. 762, 190 So. 262; Albritton v. State, 1939, 137 Fla. 20, 187 So. 601; Footman v. State, Fla.App.1967, 203 So.2d 356; Evans v. State, Fla.App.1967, 197 So.2d 323; Wilcox v. State, Fla.App.1966, 183 So.2d 555. If larceny of an automobile is a separate and distinct offense from that of breaking and entering a building with intent to commit larceny of such automobile then, a fortiori, the unauthorized use of an automobile, being a lesser included offense of larceny of such automobile, would necessarily be a separate and distinct offense from breaking and entering a building with intent to commit larceny of the automobile.

The order of dismissal in the instant case indicates that the trial court may have felt that the municipal court conviction was double jeopardy as to the breaking and entering count of the information, not because of being an identical offense or one which was necessarily included within the breaking and entering charge, but because it was one which arose out of the same transaction. The Fifth Amendment words 'same offense' do not mean and should not be construed as synonymous with 'same transaction', and we so hold. As authority for our position we cite the case of State v. Bowden, 1944, 154 Fla. 511, 18 So.2d 478:

'(1--3) In order to sustain a plea of former jeopardy it must be made to 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. King v. State, 145 Fla. 286, 199 So. 38. The words 'same offense' mean same crime or omission; not necessarily the same acts, circumstances or situation out of which the crime or omission arises. ...