State v. Hutchens
| Decision Date | 03 November 1987 |
| Docket Number | No. 86-3054,86-3054 |
| Parties | 12 Fla. L. Weekly 2522 The STATE of Florida, Appellant, v. William Frank HUTCHENS, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Debora J. Turner, Asst. Atty. Gen., for appellant.
Joel Kaplan, Miami, for appellee.
Before HENDRY, FERGUSON and JORGENSON, JJ.
This is an appeal by the state from an order dismissing on the ground of double jeopardy an information charging the defendant with trafficking in cocaine and unlawful possession of cannabis. The defendant was tried on these charges and found guilty in January, 1984.
During the defendant's trial, the question arose as to how a tape recording of a conversation between an undercover police officer, the defendant and others, which was partly in English and partly in Spanish, would be used. After a lengthy discussion of the matter by the court and counsel for the parties, the tape was allowed to be played to the jury upon the promise of the state that it would play only the portions of the tape that were in English. The state violated this condition by also playing the Spanish portions of the tape. Defense objections and motions for mistrial were denied.
In an appeal to this court the defendant's conviction was reversed and the cause remanded for a new trial. Hutchens v. State, 469 So.2d 924 (Fla. 3d DCA 1985). The court held in Hutchens, 469 So.2d at 925, that it was prejudicial error to allow a jury, made up of two persons who understood Spanish and four who did not, to listen to about forty minutes of a tape recording in Spanish which purported to recount conversations between an undercover drug agent and others, sometimes the defendant, without having the recording translated into English for the jurors by an interpreter sworn to give a faithful and accurate translation, where the defendant's request for such a translation had been overruled. The court found that reversible error had been shown, even if a translation of the recording should reveal that the conversations on the tape were totally admissible. However, the question whether the state's conduct rose to the level of gross negligence or willful misconduct which would bar a retrial of the defendant was not an issue in that appeal.
Upon remand for a new trial, as ordered by this court, counsel for the defendant moved the trial court for an order dismissing the cause on the ground of double jeopardy, which was granted. This appeal followed.
It is the state's contention in the instant appeal that the trial court committed reversible error in ordering dismissal of the charges on the ground of double jeopardy. We agree, and reverse.
In State v. Iglesias, 374 So.2d 1060, 1062 (Fla. 3d DCA 1979), this court delineated the following "narrow exception" to the rule that "where the defendant consents to a mistrial[,] ... the defense of double jeopardy is generally ineffective to bar the defendant's retrial[:]"
Where a mistrial consented to by the defendant is based on bad faith prosecutorial or trial court misconduct intentionally designed to provoke a mistrial, the state is barred by double jeopardy from ever retrying the defendant for the same crime.
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