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Feria v. Spencer

District Court of Appeal of Florida, Third District
Mar 16, 1993
616 So. 2d 84 (Fla. Dist. Ct. App. 1993)

Summary

holding a "defendant's silence when the trial court granted the mistrial cannot be construed as consent"

Summary of this case from State v. Jones

Opinion

No. 93-151.

March 16, 1993.

Bennett H. Brummer, Public Defender and Valerie Jonas, Asst. Public Defender, for petitioner.

Robert A. Butterworth, Atty. Gen., Mark S. Dunn and Avi J. Litwin, Asst. Attys. Gen., for respondent.

Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.


The petitioner, Roberto Feria, petitions this court to issue a writ prohibiting his reprosecution based on the constitutional prohibition against double jeopardy. We grant the writ of prohibition.

During the state's redirect examination of one of its witnesses the trial court, sua sponte, and without the defendant's consent, declared a mistrial and discharged the jury. The defendant's silence when the trial court granted the mistrial cannot be construed as consent. See State v. Grayson, 90 So.2d 710 (Fla. 1956); Allen v. State, 52 Fla. 1, 41 So. 593 (1906); State v. McNeil, 362 So.2d 93 (Fla. 1st DCA 1978). Moreover, a trial court may only discharge a jury when there is a "manifest necessity" for the act. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); State v. Grayson, 90 So.2d 710 (Fla. 1956).

In the instant case, the mistrial was not dictated by manifest necessity. In fact, the trial court had no legally sufficient reason to declare a mistrial. Therefore, "the discharge is equivalent to an acquittal and precludes a subsequent trial for the same offense." Grayson, 90 So.2d at 713. Any retrial would violate the defendant's constitutional right not to be placed in double jeopardy.

Writ of prohibition issued.


Summaries of

Feria v. Spencer

District Court of Appeal of Florida, Third District
Mar 16, 1993
616 So. 2d 84 (Fla. Dist. Ct. App. 1993)

holding a "defendant's silence when the trial court granted the mistrial cannot be construed as consent"

Summary of this case from State v. Jones

holding a “defendant's silence when the trial court granted the mistrial cannot be construed as consent.”

Summary of this case from Merchandise v. State
Case details for

Feria v. Spencer

Case Details

Full title:ROBERTO FERIA, PETITIONER, v. THE HONORABLE THOMAS SPENCER, CIRCUIT COURT…

Court:District Court of Appeal of Florida, Third District

Date published: Mar 16, 1993

Citations

616 So. 2d 84 (Fla. Dist. Ct. App. 1993)

Citing Cases

State v. Jones

We find "this position is without merit, as the law on this point is well-established: a defendant's mere…

Merchandise v. State

See State v. Grayson, 90 So.2d 710, 713 (Fla.1956) (noting that “silence of the defendant on trial for a…