Opinion
No. 78-1273.
June 26, 1979.
Appeal from the Circuit Court, Dade County, Paul Baker, J.
Janet Reno, State's Atty. and Ira N. Loewy, Asst. State's Atty., for appellant.
Henry Gonzalez, Tampa, for appellee.
Before PEARSON, HENDRY and HUBBART, JJ.
The State of Florida brings this appeal from an order dismissing an information against defendant Martin Katz. The information was dismissed on the ground that Katz's trial upon a prior information and a finding therein of not guilty collaterally estopped the State from the prosecution of the second information.
Defendant Katz was charged in the first information with burglary of a conveyance, aggravated assault and possession of burglary tools. The count charging the defendant with burglary of a conveyance alleged, in pertinent part, that:
". . . MARTIN KATZ on the 16th day of November, 1977 . . . did unlawfully enter or remain in a certain conveyance, to-wit: A 1977 BUICK AUTOMOBILE, the property of MIKE ALBURY, with the intent to commit an offense therein, to-wit: THEFT . ."
A non-jury trial took place on April 4, 1978. Testimony was presented showing that the automobile at which defendant was discovered and into which he had broken was a 1975 Chevrolet belonging to Michael Albury. The 1977 Buick described in the information, in fact, belonging to the defendant's wife and was the vehicle in which the defendant and his companions attempted to escape.
At the close of all the evidence, defense counsel moved for dismissal of all charges. The court expressed confusion over the discrepancy between the allegation of a 1977 Buick contained in the information and the proof of a 1975 Chevrolet presented at trial. The State advised the court that the information contained in the State's file had been corrected to reflect that the subject of the burglary was a 1975 Chevrolet. However, the official information in the court's file had not been amended or corrected, nor had notice been given to the defendant or his attorney of a motion to amend. Consequently, the court, noting that the defendant was charged with "breaking into his own car," found defendant not guilty. The court also found defendant not guilty of the other counts charged in the information.
Thereafter, the State filed a new information, charging the defendant with burglary of a conveyance and grand theft. The first count alleged, in pertinent part, that:
". . . MARTIN KATZ on the 16th day of November, 1977 . . . did unlawfully enter or remain in a certain conveyance, to-wit: A 1975 CHEVROLET AUTOMOBILE, the property of MIKE ALBURY, with the intent to commit an offense therein, to-wit: THEFT . . ."
In the second count, the defendant was charged with theft of that same automobile.
The defendant filed a "Motion for Collateral Estoppel" and a supporting memorandum of law in which he alleged that the State was barred from prosecuting him for burglary and theft of the Chevrolet by virtue of his acquittal in the prior case heard on April 4, 1978. The court agreed and, in an order rendered June 12, 1978, dismissed all charges against the defendant based upon the doctrine of collateral estoppel announced in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This appeal followed.
The State contends that it was error for the trial judge to dismiss the second information because the only charge of which the defendant was acquitted was burglary of a 1977 Buick and that the charge of stealing the 1975 Chevrolet was a new charge. The State relies upon the holding in State v. Beamon, 298 So.2d 376 (Fla. 1974); and State v. Bentley, 81 So.2d 750 (Fla. 1955).
We hold that the decision of the trial court must be affirmed on authority of the principles stated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).
While we recognize here that the distinction is close, we believe that one exists. In the Beamon case, the Supreme Court found that a difference in the day alleged for the crime constituted a different crime for which the defendant could be prosecuted. In the present case, however, the second information was obviously tailored to meet the proof that had been offered at the first trial and constituted only a change in the description of the automobile alleged to have been stolen.
Affirmed.
I must respectfully dissent. I would reverse the order under review and remand the cause to the trial court for further proceedings under the authority of State v. Beamon, 298 So.2d 376 (Fla. 1974), and State v. Bentley, 81 So.2d 750 (Fla. 1955).
In my view, the court makes the same error under the same controlling facts as this court made in State v. Beamon, 302 So.2d 208 (Fla. 3d DCA 1973), which decision was subsequently quashed in State v. Beamon, 298 So.2d 376 (Fla. 1974), and as the trial court made in State v. Bentley, 81 So.2d 750 (Fla. 1955). That error is in concluding that the first information upon which a judgment of acquittal was entered charges "the same offense" which the defendant is presently charged with under the second information, and that, therefore, the defense of double jeopardy or collateral estoppel is applicable to bar the second information. In point of fact, two different offenses are charged in the above two informations involving two entirely separate cars thereby rendering the defense of double jeopardy and collateral estoppel ineffective.
In the first information, the defendant was charged with the burglary of a 1977 Buick automobile, the property of Mike Albury. He was tried and acquitted on this charge. He was thereafter charged with the burglary of a 1975 Chevrolet automobile, the property of Mike Albury. These two informations charge two separate crimes and an acquittal on the first information cannot bar a prosecution on the second information under the defense of double jeopardy or collateral estoppel. Different offenses, not the same offense, are charged in the two informations.
This result is not changed by the fact that the proofs at the first trial showed that the defendant owned the 1977 Buick automobile in question and had burglarized a 1975 Chevrolet automobile. The first information charged the defendant with burglary of the 1977 Buick and an acquittal thereon can only be an acquittal as to the burglary of that particular automobile. The issue of whether the defendant burglarized the 1975 Chevrolet on the same day was neither litigated nor determined at the first trial. I entirely agree with the court that the second information was obviously tailored to meet the proof that was offered at the first trial, but that fact has no legal significance as the issues determined at the first trial in no way involved whether the defendant had burglarized the 1975 Chevrolet. As such, the doctrine of double jeopardy or collateral estoppel cannot bar a prosecution of the defendant for the burglary of the 1975 Chevrolet.
In State v. Beamon, 298 So.2d 376 (Fla. 1974), the Supreme Court held that an acquittal on a robbery occurring on one date did not bar a subsequent information charging a robbery of the same victim on a different date. The defense of double jeopardy and collateral estoppel was held ineffective to bar the second prosecution. This result was in no way changed by the fact that at the first trial it was established that the robbery in question had occurred on the date subsequently charged in the second information. Similarly, in the instant case, it can make no difference that the proofs at the first trial showed that the defendant had burglarized the automobile subsequently charged in the second information.
In State v. Bentley, 81 So.2d 750 (Fla. 1955), the Florida Supreme Court held that an acquittal on the charge of larceny of a cow on a certain date did not bar a subsequent prosecution for the larceny of a bull, property of the same person, occurring on the same date. The defense of double jeopardy was held ineffective to bar the second prosecution. This result was in no way changed by the fact that at the first trial it was established that the defendant stole a bull, rather than a cow, belonging to the complaining witness. Similarly, in the instant case, it can make no difference that the state established at the first trial that the defendant burglarized the automobile subsequently charged in the second information.
I would reverse.