Waller v. Florida, No. 24

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation25 L.Ed.2d 435,397 U.S. 387,90 S.Ct. 1184
Decision Date06 April 1970
Docket NumberNo. 24
PartiesJoseph WALLER, Jr., Petitioner, v. State of FLORIDA

397 U.S. 387
90 S.Ct. 1184
25 L.Ed.2d 435
Joseph WALLER, Jr., Petitioner,

v.

State of FLORIDA.

No. 24.
Argued Nov. 13, 1969.
Decided April 6, 1970.
Rehearing Denied May 18, 1970.

See 398 U.S. 914, 90 S.Ct. 1684.

Leslie H. Levinson, Gainesville, Fla., for petitioner.

George Georgieff, Tallahassee, Fla., for respondent.

Page 388

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted the writ in this case to review a narrow question which can best be treated on the basis of the facts as stated by the District Court of Appeal of Florida, Second District, and the holding of that couet. Petitioner was one of a number of persons who removed a canvas mural which was affixed to a wall inside the City Hall of St. Petersburg, Florida. After the mural was removed, the petitioner and others carried it through the streets of St. Petersburg until they were confronted by police officers. After a scuffle, the officers recovered the mural, but in a damaged condition.

The petitioner was charged by the City of St. Petersburg with the violation of two ordinances: first, destruction of city property; and second, disorderly breach of the peace. He was found guilty in the municipal court on both counts, and a sentence of 180 days in the county jail was imposed.

Thereafter an information was filed against the petitioner by the State of Florida charging him with grand larceny. It is conceded that this information was based on the same acts of the petitioner as were involved in the violation of the two city ordinances.

Before his trial in the Circuit Court on the felony charge, petitioner moved in the Supreme Court of Florida for a writ of prohibition to prevent the second trial, asserting the claim of double jeopardy as a bar. Relief was denied without opinion. State ex rel. Waller v. Circuit Court for the Sixth Judicial Circuit in and for Pinellas County, 201 So.2d 554 (1967). Thereafter petitioner was tried in the Circuit Court of Florida by a jury and was found guilty of the felony of grand larceny. After verdict in the state court, he was sentenced to six months to five years less 170 days of the 180-day sentence pre-

Page 389

viously imposed by the municipal court of St. Petersburg, Florida.

On appeal, the District Court of Appeal of Florida considered and rejected petitioner's claim that he had twice been put in jeopardy because prior to his conviction of grand larceny, he had been convicted by the municipal court of an included offense of the crime of grand larceny. Waller v. State, 213 So.2d 623 (1968). The opinion of the District Court of Appeal first explicitly acknowledged that the charge on which the state court action rested 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances.' Then in rejecting Waller's claim of double jeopardy, the court said:

'Assuming but not holding that the violations of the municipal ordinances were included offenses of the crime of grand larceny, the appellant nevertheless has not twice been put in jeopardy, because even if a person has been tried in a municipal court for the identical offense with which he is charged in a state court, this would not be a bar to the prosecution of such person in the proper state court. This has been the law of this state since 1894, as is established in the case of Theisen v. McDavid, 34 Fla. 440, 16 So. 321, 26 L.R.A. 234. The Florida Supreme Court has followed the Theisen case, supra, throughout the years and as recently as July 17, 1968, in Hilliard v. City of Gainesville, Fla., 213 So.2d 689, reaffirmed the Theisen case and stated as follows:

"This double jeopardy argument has long been settled contrary to the claims of the petitioner. We see no reason to recede from our established precedent on the subject. Long ago it was decided that an act committed within municipal limits may be punished by city ordinance even though the same

Page 390

act is also proscribed as a crime by a state statute. An offender may be tried for the municipal offense in the city court and for the crime in the proper state court. Conviction or acquittal in either does not bar prosecution in the other." (Emphasis added.)

A petition for a writ of certiroari to the Supreme Court of Florida was denied, Waller v. State, 221 So.2d 749 (1968). It is reasonable to assume that the Florida trial court and the District Court of Appeal considered themselves bound by the doctrine of Theisen v. McDavid, 34 Fla. 440, 16 So. 321, which at that time was being reasserted in Hilliard v. City of Gainesville, 213 So.2d 689, and had been reaffirmed by the Florida Supreme Court's denial of a writ of prohibition sought by Waller on the claim of double jeopardy.

We act on the statement of the District Court of Appeal that the second trial on the felony charge by information 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances' and on the assumption that the ordinance violations were included offenses of the felony charge.1

Whether in fact and law petitioner committed separate offenses which could support separate charges was not decided by the Florida courts, nor do we reach that question. What is before us is the asserted power of the two courts within one State to place petitioner on trial for the same alleged crime.

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), this Court declared the double jeopardy provisions of the Fifth Amendment applicable to the States, overruling Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Here, as

Page 391

in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969), Benton should be applied to test petitioner's conviction, although we need not and do not decide whether each of the several aspects of the constitutional guarantee against double jeopardy requires such application in similar procedural circumstances.2

Florida does not stand alone in treating municipalities and the State as separate sovereign entities, each capable of imposing punishment for the same alleged crime.3

Page 392

Here, respondent State of Florida seeks to justify this separate sovereignty theory by asserting that the relationship between a municipality and the State is analogous to the relationship between a State and the Federal Government. Florida's chief reliance is placed upon this Court's holdings in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L,.ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), which permitted successive prosecutions by the Federal and State Governments as separate sovereigns. Any such reading of Abbate is foreclosed. In another context, but relevant here, this Court noted—

'Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.' Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d...

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484 practice notes
  • State v. Moeller
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...since Bartkus and Abbate. Those decisions are Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); 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 cannot agree with the defe......
  • U.S. v. Peltier, No. 73-2509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 9, 1974
    ...Court. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). The Supreme Court faced the question whether Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), which barred duplicate prosecutions when a single act violated both state and municipal laws, was fu......
  • U.S. v. Sanchez, No. 90-5749
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 4, 1993
    ...and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). 6 With similar reasoning, the Court held in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), that successive prosecutions by state and municipal authorities violate the Double Jeopardy 7 See Sim......
  • State v. Brabson, No. 1309-95
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 25, 1998
    ...82 L.Ed. 235 (1937)). As entities of the same sovereign they derive their power from the same "organic law." Ibid. In Waller v. Florida, 397 U.S. 387, 391-392, 90 S.Ct. 1184, 1187, 25 L.Ed.2d 435 (1970), the State of Florida attempted to prosecute an individual under State law after he had ......
  • Request a trial to view additional results
483 cases
  • State v. Moeller
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...since Bartkus and Abbate. Those decisions are Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); 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 cannot agree with the defe......
  • U.S. v. Peltier, No. 73-2509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 9, 1974
    ...Court. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). The Supreme Court faced the question whether Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), which barred duplicate prosecutions when a single act violated both state and municipal laws, was fu......
  • U.S. v. Sanchez, No. 90-5749
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 4, 1993
    ...and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). 6 With similar reasoning, the Court held in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), that successive prosecutions by state and municipal authorities violate the Double Jeopardy 7 See Sim......
  • State v. Brabson, No. 1309-95
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 25, 1998
    ...82 L.Ed. 235 (1937)). As entities of the same sovereign they derive their power from the same "organic law." Ibid. In Waller v. Florida, 397 U.S. 387, 391-392, 90 S.Ct. 1184, 1187, 25 L.Ed.2d 435 (1970), the State of Florida attempted to prosecute an individual under State law after he had ......
  • Request a trial to view additional results
1 books & journal articles
  • The Supreme Court of the United States, 1969-1970
    • United States
    • Political Research Quarterly Nbr. 23-4, December 1970
    • December 1, 1970
    ...the peace. Following this the State of Florida charged him with grand larceny based on the same acts. In Waller v. Florida (397U.S. 387; 90 S. Ct. 1184) the question was before the Court as to whether thesecond prosecution involved double jeopardy under the Fifth Amendment sinceBenton v. Ma......

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