State v. Kling
| Decision Date | 30 July 1976 |
| Docket Number | No. 76--361,76--361 |
| Citation | 335 So.2d 614 |
| Parties | STATE of Florida, Appellant, v. Robert KLING et al., Appellees. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
Denis M. de Vlaming and Raymond O. Gross, Clearwater, for appellees.
The appellees were charged with felony possession of drugs and drug paraphernalia. They filed a motion to dismiss in which they stated that they had been guests for 'a day or two' in the house where the drugs were seized by the police pursuant to a search warrant. They asserted that the drugs and paraphernalia were not in their possession and that they had no knowledge of their presence in the house. They further stated that charges of misdemeanor possession of other drugs and paraphernalia seized by the police at the same time had been dismissed upon their motion by a county judge. Thus, they argued that they were entitled to have the circuit court charges dismissed upon the doctrine of collateral estoppel. While observing that had he been the county judge he would not have dismissed the misdemeanor charges, the circuit judge believed that he was bound by the principles of Ashe v. Swenson, 1970,397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189, and dismissed the charges. The state appeals the order of dismissal entered by the circuit judge.
The dismissal must be reversed for two reasons. 1 First, in Ashe the Supreme Court announced that before collateral estoppel would become applicable, it was necessary to show that the same issue had already been adjudicated in favor of the defendant. Ashe was acquitted of robbing one of a group of several persons playing poker. He was later convicted of robbing one of the other players. The court observed the single rationally conceivable issue in dispute in the first trial was whether Ashe had been one of the robbers. The holding of the court was that once a jury had determined by its verdict that the defendant was not one of the robbers, the state could not constitutionally litigate that issue again before a new jury.
In the instant case, the motions filed both in the county court and in the circuit court simply stated that the drugs and paraphernalia were seized in the house in which they had been staying as guests. In a case of constructive possession, much would depend upon where the illegal items were found. Differing results might well obtain with respect to drugs found in a common area of the house and drugs found in a defendant's suitcase. See Spataro v. State, Fla.App.2d 1965, 179 So.2d 873. There was no showing in this record that the drugs and paraphernalia covered by the misdemeanor charges were located together with the drugs and paraphernalia upon which the felony charges were based. Thus, it cannot be said that the appellees carried the burden of proving that the county judge passed on the same issue that was before the circuit court. Busbee v. State, Fla.App.1st, 1966, 183 So.2d 27.
Second, and more fundamental, is the fact that even if all of the drugs and paraphernalia were in the same location when they were seized, the dismissal of the misdemeanor charges by the county judge does not bring into play the doctrine of collateral estoppel. In Ashe the majority opinion made it clear that collateral estoppel in a criminal case was a part of the Fifth Amendment guarantee against double jeopardy. The only reason that Ashe could not be prosecuted for the second robbery was that he had already been placed in jeopardy for the first. Hence, it is necessary to consider what constitutes jeopardy.
district court had dismissed an indictment upon a procedure substantially similar to that which is contemplated by a motion to dismiss under RCrP 3.190. In the course of the government's appeal from the order of dismissal, it became necessary to determine whether the defendant had suffered jeopardy, because if he had, the government was not entitled to an appeal. The U.S. Supreme Court held that jeopardy had not attached when the judge granted the motion to dismiss the indictment because the defendant ...
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State v. McCord
...the same evidence. To the extent that the dictum in Suiero conflicts with our present opinion, we recede therefrom. In State v. Kling, 335 So.2d 614 (Fla.2d DCA 1976), the Second District reached the same conclusion argued by appellant. The court held that an accused must have been placed i......
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Dade County Public Health Trust v. Fuentes
...So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). Accord State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974) (where this court affirmed the dismissal of an information after fir......
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Jacobs v. State, 77-649
...dismissal. The denial of the motion to dismiss was not error. See: State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974); State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). The rulings of the trial court in denying severance, and in allowing testimony concerning inculpatory statements made by......
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Goodmakers v. State
...says that this means that the motion should be verified by one with firsthand knowledge of the facts alleged. See State v. Kling, 335 So.2d 614, 615, n. 1 (Fla. 2d DCA 1976); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). Here, the individual with personal knowledge was Goodmakers, not......