State v. Short

• Decision Date: 26 August 1987
• Docket Number: No. 86-1954,86-1954
• Citation: 513 So.2d 679,12 Fla. L. Weekly 2091
• Parties: 12 Fla. L. Weekly 2091 STATE of Florida, Appellant, v. John M. SHORT, Appellee.
• Court: Florida District Court of Appeals

Page 679

513 So.2d 679

12 Fla. L. Weekly 2091

STATE of Florida, Appellant, v. John M. SHORT, Appellee.

No. 86-1954.

District Court of Appeal of Florida Second District.

Aug. 26, 1987.

Rehearing and Rehearing En Banc Denied Oct. 8, 1987.

Robert A. Butterworth, Atty. Gen., Tallahassee and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellant.

Anthony S. Battaglia, Stephen J. Wein and Kelli Hanley Crabb of Battaglia, Ross, Hastings, Dicus & Andrews, P.A., St. Petersburg, for appellee.

THREADGILL, Judge.

The state appeals the dismissal of an indictment on principles of collateral estoppel. We affirm.

On August 24, 1984, Pasco County Sheriff John Short (Short) was indicted on three counts of unlawful compensation. The third count alleged Short accepted pecuniary benefits from a John Moorman in return for a letter falsely indicating he had employed Richard Terry. This count also referred to allegations in counts one and two concerning real estate transactions and on October 23, 1984, the third count was dismissed as vague and multiplicious. The next day, in a two-count indictment, the state charged Short with official misconduct pursuant to Florida Statute 839.25, using the same factual allegations as in the dismissed count. The trial court dismissed the second indictment based on the unconstitutionality of § 839.25, Florida Statutes (1983).

On May 15, 1985, Short was acquitted by a jury on counts one and two of the first indictment alleging he accepted proceeds of the sale of a home and of a travel agency from Moorman in exchange for Moorman's continued employment as a deputy. This court later upheld the constitutionality of § 839.25 and reinstated the second indictment in State v. Short, 483 So.2d 10 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 597 (Fla.1986).

Short then moved to dismiss the second indictment on grounds of collateral estoppel arguing that evidence concerning Richard Terry was heard under the Williams Rule at his first trial, had been made a focal point, and that the jury had necessarily decided it in his favor. The trial court dismissed the indictment on July 25, 1986. In the Order Granting Defendant's Motion to Dismiss the court found as follows:

An examination of the record in the prior trial reveals the rather profound injection into the prior trial of the substance of the indictment at issue. It cannot be gainsaid that the issues of the present action were not evidentiary facts in prior trial. As this defendant was acquitted in the prior trial in which the allegations of the present indictment played such a substantive role as evidentiary facts under the Williams Rule, it is clear that to require the defendant to defend again against the same factual allegations would be fundamentally unfair. Holland v. State, 466 So.2d 207 (Fla.1985); Albert v. Montgomery, 732 F.2d 865 (11th Cir.1984).

Collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. When an issue of ultimate fact has once been determined by a valid and final judgment in a criminal case it cannot be again litigated between the same parties. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In a criminal case, a jury does not respond to a special interrogatory, but rather expresses itself in a verdict of guilty or not guilty. In such a case, when a verdict of not guilty is rendered, the fact sought to be foreclosed must necessarily have been determined in the defendant's favor; it is not sufficient that the fact might have been determined in the first trial. U.S. v. Irvin, 787 F.2d 1506 (11th Cir.1986). The burden is on the defendant to prove by convincing, competent evidence that it was necessary in the initial trial to determine the fact sought to be foreclosed. U.S. v. Hogue, 812 F.2d 1568 (11th Cir.1987); U.S. v. Hewitt, 663 F.2d 1381 (11th Cir.1981). Therefore, where a previous judgment of acquittal in a criminal case is based upon a general verdict, the court is required to examine the record and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose. Ashe, 397 U.S. at 444, 90 S.Ct. at 1194.

The state contends that the court did not consider whether the verdict in the first trial could have been grounded on an issue other than the falsification of official records. We have examined the entire record in this case, including the record of the first trial, and find, as did the trial judge, that the jury in the first case must have found for Short regarding the Richard Terry evidence. The trial judge's ruling comes to us with the same presumption of correctness that attaches to a jury verdict and final judgment. DeConingh v. State, 433 So.2d 501 (Fla.1983), cert. denied, 456 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); Demps v. State, 462 So.2d 1074 (Fla.1984); State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974).

In Ashe, six men playing poker were robbed by several masked gunmen. After being acquitted of robbery of one of the players, the defendant was tried for the robbery of another and convicted. The Supreme Court reversed. It held that because the single issue in dispute was the identity of the defendant as one of the robbers, the rule of collateral estoppel made the second trial wholly impermissible. In a specially concurring opinion, Justice Brennan, joined by Justices Douglas and Marshall, added that even if the rule of collateral estoppel had been inapplicable, the double jeopardy clause nevertheless barred the second trial because it grew out of the same transaction.

Prior to the first trial in this case, the state announced its theory that this was a single ongoing scheme. The state had filed a notice of intent to use Williams Rule evidence, ¹ and Short had objected. The state argued that it would be impossible to try the case in a vacuum and that the evidence was necessary to establish the relationship between the defendants. The state further stated that the totality of the relationship between these parties, that is, the corruption, was probably the most important element for the jury to hear. The court reserved ruling and the Terry evidence became a highlight of the trial. It was covered in opening statement, direct and...