From Casetext: Smarter Legal Research

Kelly v. State

District Court of Appeal of Florida, Second District
Jun 23, 1976
334 So. 2d 128 (Fla. Dist. Ct. App. 1976)

Summary

holding that after trial court had granted motion for judgment of acquittal, it was error to reinstate the charge and submit it to the jury after the defendant had rested his case

Summary of this case from Boone v. State

Opinion

No. 75-696.

June 23, 1976.

Appeal from the Circuit Court, Sarasota County, Roy E. Dean, J.

Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.


Appellant raises several points on this timely appeal. After due consideration of the record we find only one merits discussion.

At the conclusion of the state's case appellant moved for judgments of acquittal as to Counts V and VI of the information which charged him with malicious destruction of a jail cell and malicious destruction of a police car respectively. The court granted the motion as to Count VI involving the police car. After the close of appellant's case, the court announced that it was reinstating Count VI and that the motion had been one of dismissal rather than acquittal. We do not agree and hold this decision by the trial judge constitutes reversible error. Appellant was clearly prejudiced by having the charge reinstated after he had rested his case. The grant of the motion for acquittal acts as a bar to subsequent prosecution. Cf., Potter v. State, 1926, 91 Fla. 938, 109 So. 91.

We note that appellant was sentenced to a concurrent one year sentence for Counts III-VI of the information. (These four counts were the two aforementioned charges of malicious destruction of public property and two counts of assault and battery.) This was an invalid general sentence as to those four counts. See Long v. State, Fla.App.2d 1975, 310 So.2d 35. Accordingly, we vacate this portion of the sentence.

The trial court is directed to vacate the judgment and sentence on Count VI; discharge appellant as to that count; and enter proper sentences on Counts III, IV and V. The judgment and sentence rendered on Counts I and II are affirmed. The judgment as to Counts III, IV and V is affirmed.

REVERSED in part; AFFIRMED in part; and REMANDED for proper sentencing.

BOARDMAN, Acting C.J., and GRIMES and SCHEB, JJ., concur.


Summaries of

Kelly v. State

District Court of Appeal of Florida, Second District
Jun 23, 1976
334 So. 2d 128 (Fla. Dist. Ct. App. 1976)

holding that after trial court had granted motion for judgment of acquittal, it was error to reinstate the charge and submit it to the jury after the defendant had rested his case

Summary of this case from Boone v. State

In Kelly, the court held that the grant of a motion for acquittal on the charge of malicious destruction of a police car after the state's case was concluded acted as a bar to subsequent prosecution and that reinstatement of the charge after the close of defendant's case was reversible error.

Summary of this case from Watson v. State

In Kelly, the state argued that the defendant had no opportunity to present evidence on the charge of malicious destruction of a police car since he was operating under the assumption that the charge no longer existed, whereas in this case the court reinstated the charge prior to appellant's presentation of any evidence.

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

Kelly v. State

Case Details

Full title:GEORGE MICHAEL KELLY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Jun 23, 1976

Citations

334 So. 2d 128 (Fla. Dist. Ct. App. 1976)

Citing Cases

Dorfman v. State

The Third District Court of Appeal, in a decision reported at 333 So.2d 481, has approved a three year…

Watson v. State

The court disagreed on the grounds that additional testimony would not be required as appellant would merely…