State v. Katz

• Decision Date: 30 July 1981
• Docket Number: Nos. 57227,56169,s. 57227
• Citation: 402 So.2d 1184
• Parties: STATE of Florida, Petitioner, v. Martin KATZ, Respondent. STATE of Florida, Petitioner, v. Alfred WITHERSPOON, Respondent.
• Court: Florida Supreme Court

Page 1184

402 So.2d 1184

STATE of Florida, Petitioner, v. Martin KATZ, Respondent.

STATE of Florida, Petitioner, v. Alfred WITHERSPOON, Respondent.

Nos. 57227, 56169.

Supreme Court of Florida.

July 30, 1981.

Rehearing Denied Sept. 24, 1981.

Jim Smith, Atty. Gen., Janet Reno, State Atty. and Ira N. Loewy and Dennis Curran, Asst. State Attys., Miami, for petitioner.

Henry Gonzales, Miami, and Julius Lucius Echeles and Caroline Jaffe, Chicago, Ill., for respondent Katz.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, Miami, for respondent Witherspoon.

PER CURIAM.

By petitions for writs of certiorari the state seeks review of two decisions, State v. Katz, 372 So.2d 201 (Fla. 3d DCA 1979), and State v. Witherspoon, 366 So.2d 487 (Fla. 3d DCA 1979), which allegedly conflict with prior decisions of this Court. Art. V, § 3(b)(3), Fla.Const. Although prosecuted separately in both the trial courts and district court of appeal, they have been consolidated for purposes of review in this Court as involving the same legal issue.

The question presented is whether a defendant who obtains a judgment of acquittal on the grounds that a material variance existed between the allegations in the information and the proof adduced at trial is thereafter protected by double jeopardy or collateral estoppel from a second prosecution based upon an information which conforms to the proof adduced at the first trial.

In Katz one count of the information charged burglary of a conveyance, "to-wit: A 1977 BUICK AUTOMOBILE." At trial the evidence revealed that the stolen vehicle was in fact a 1975 Chevrolet. At the close of the evidence the defendant moved to dismiss all charges. The court observed that defendant had been charged with "breaking into his own car" and granted the motion. The second Katz information tracked the first as to the burglary charge, except that the stolen vehicle was described as "a 1975 Chevrolet." The court dismissed this information on the basis of collateral estoppel citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and the district court affirmed.

In Witherspoon the first information, as limited by a statement of particulars, alleged that the crime occurred on November 19, 1976, "at approximately 8:00 P.M." At trial, the proof indicated the actual time was dusk or nightfall which occurred around 5:30 P.M. on that date. The defendant claimed the variance was material and prejudicial in light of his alibi defense and successfully moved for a judgment of acquittal. Predictably the next information alleged the crime occurred on November 19, 1976, "at dusk, to-wit: between 6:00 P.M. 8:00 P.M." This information was dismissed by the trial court as barred by the prohibition against double jeopardy. The district court affirmed.

In both Katz and Witherspoon Judge Hubbart dissented, citing our decision in State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). In Beamon the first information, as limited by a bill of particulars, specified November 24, 1972, as the date of the offense. Proof at trial showed that November 26, 1972, was the actual date. The court granted a judgment of acquittal on the basis of the variance and declared the defendant "not guilty of the crime of robbery on Nov. 24, 1972." Id. at 378 (emphasis deleted). The second information in Beamon alleged the previously proven date and was dismissed on double jeopardy and collateral estoppel grounds. This was affirmed by the Third District Court of Appeal. State v. Beamon, 302 So.2d 208 (Fla. 3d DCA 1973). In quashing that decision this Court noted that double jeopardy will bar subsequent prosecutions only where:

(1) (T)here was a former prosecution in the same state for the same offense ; (2) that the same person was in jeopardy on the first prosecution; (3) that the parties are identical in the same prosecution; and (4) that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar.

298 So.2d at 379-80 (citations omitted and emphasis in original). We specifically found that since the variance between the dates was material, thereby justifying an acquittal in the first prosecution, the offense charged in the second information was not the "same offense" and thus double jeopardy did not apply.

Florida's test for determining whether successive prosecutions impermissibly involved the same offense is based upon the sufficiency of the allegations in the second information with regard to a conviction of the offense charged in the first. If the facts alleged in the second information, taken as true, would have supported a conviction of the offense charged in the prior information, the offenses are the same and the second prosecution is barred. Bizzell v. State, 71 So.2d 735 (Fla.1954). This is similar to the federal standard which allows the second prosecution where conviction of either offense requires proof of a fact which is not required by the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932). Under the facts of the cases at bar, we need not delve into the distinctions between the two tests. See generally Note, Twice in Jeopardy, 75 Yale L.J. 262, 269-75 (1965); Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978).

Tests for identity of offenses were formulated to prevent the unjust results occurring under the rules of common law pleading which made the slightest variation between the pleadings and proof fatal to the prosecution. A plea of former acquittal barred reprosecution; thus the guilty were permanently freed from further prosecution on the basis of technicalities of pleading. See The King v. Vandercomb & Abbott, 2 Leach 708, 168 Eng.Rep. 455 (1796), cited in Note, 75 Yale L.J. at 271, and Note, Double Jeopardy in Florida, 2 U.Fla.L.Rev. 250, 253 (1949). Similar injustice will result if a defendant who clearly is acquitted on the basis of a variance may later assert that the variance wasn't really material and that the offenses differentiated thereby are one and the same. State v. Beamon. In State v. Bentley, 81 So.2d 750 (Fla.1955), this Court distinguished situations such as the ones at bar from one in which the defendants went to trial on the first charge and were acquitted by a jury in spite of a variance between the pleading (larceny of a cow) and proof (larceny of a calf). See Driggers v. State, 137 Fla. 182, 188 So. 118 (1939). In the latter instance "from all that appears in the 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 (1960).

Defendant Katz argues that since he did not affirmatively seek a judgment of acquittal based upon the variance, the Beamon rationale should not be applied to prevent him from denying its materiality when the second, accurate information was filed. We disagree. The import of the Beamon, Bentley and Driggers decisions is that if a variance is substantial enough to form the basis for an acquittal, it must be deemed a material variance. The trial judge acted sua sponte to dismiss the first Katz information, but the acquittal was unquestionably founded upon the discrepancy between a 1977 Buick and a 1975 Chevrolet. The fact that the trial judge instead of defendant discerned and acted upon the flaw in the information dos not alter the underlying principle.

Assuming the variance was material, defendant Katz argues the state may not relitigate the issue under principles of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This doctrinal extension of the double jeopardy prohibition applies to bar relitigation between the same parties of issues actually determined at previous trial. In Ashe the defendant was acquitted of robbing a poker game on the basis of identity, i. e., he was not one of the robbers. Since his identity as a robber of that game had been resolved in his favor, the state was collaterally estopped from relitigating his identity as a robber by reprosecuting for robbery of a different poker player. See State v. Powell, 314 So.2d 787 (Fla. 2d DCA 1975). In Katz the defendant was cleared only of stealing a 1977 Buick. The issue of whether he stole anything else, e. g., a 1975 Chevrolet, was never resolved in his favor and may be relitigated. See State v. Nocon, 352 So.2d 910 (Fla. 2d DCA 1977), cert. denied, 367 So.2d 1125 (Fla.1979).

Nor is reprosecution barred under the facts in Witherspoon, where the defendant actively sought and obtained a judgment of acquittal on the basis of a material variance between the allegations and proof. Judge Hubbart lucidly explained why Witherspoon's situation is legally indistinguishable from Beamon's, and we need only paraphrase the facts of each case to highlight his...