Definition of Double Jeopardy
Double Jeopardy in Florida is governed by State and Federal constitutional provisions. The Fifth Amendment to the United States Constitution provides that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” This language is known as the Double Jeopardy Clause, or the guarantee against Double Jeopardy. Although the clause is commonly understood to preclude re-trial of an accused after acquittal, Double Jeopardy principles have numerous other applications under Florida and Federal criminal law.
Broadly speaking, the Double Jeopardy Clause accomplishes three main goals: (1) it prohibits prosecution and punishment for the same offense after acquittal, (2) it prohibits prosecution and punishment for the same offense after conviction, and (3) it prohibits multiple prosecutions and punishments for the same offense.
Application of Double Jeopardy
Generally speaking, the Double Jeopardy Clause of the Fifth Amendment is applicable to any Florida proceeding whose sole purpose is punishment. Thus, all felony and misdemeanor prosecutions are subject to Double Jeopardy protections. This is true whether the prosecution occurs at the State or Federal level. Although the U.S. Constitution is a federal document, its Double Jeopardy protections were extended to the states, through the US Supreme Court’s “incorporation doctrine.” The guarantee against Double Jeopardy is also contained in the Florida Constitution.
Attachment of Jeopardy
The state and federal constitutional guarantees against Double Jeopardy do not apply until jeopardy has “attached.” “Attachment” means that the proceedings have progressed to a stage where the Double Jeopardy rights of a defendant are implicated. A defendant may show up for a jury trial 100 times, but, unless Double Jeopardy has legally “attached,” there is no constitutional violation or bar to re-trial.
In the context of a jury trial, Double Jeopardy attachment occurs when the jury is empanelled and sworn. Thus, when the state and defense have selected their jurors and the clerk or judge administers the oath in court, a defendant cannot thereafter be re-tried. In the context a bench trial (a trial before a judge), attachment occurs when the first witness is sworn. Where a plea occurs, Double Jeopardy attaches when the court accepts the defendant’s plea unconditionally.
Special rules apply where a defendant’s trial begins, but then is cut short due to a “mistrial.” If the mistrial occurs with the defendant’s consent or acquiescence, then the defendant may be tried again. Re-trial is also permissible where the mistrial occurs because of “manifest necessity” or because of a “hung jury” (where jurors are unable to reach a unanimous verdict). However, if the mistrial occurs because of prosecutorial misconduct, overreaching, or the prosecutor “goading” the defense into seeking a mistrial, then Double Jeopardy principles will bar re-prosecution or re-trial.
Multiple Prosecutions for the Same Offense
It often occurs that one criminal episode or set of facts can provide a basis for prosecuting and punishing a defendant for multiple offenses. If the offenses are considered distinct or “separate,” a defendant may be subjected to multiple punishments, one for each such separate offense. If the offenses are not separate and they arise out of the same criminal transaction, then Double Jeopardy principles will apply to prevent multiple punishments or prosecutions for the same offense.
To determine whether two offenses arising from the same criminal episode are “separate,” Florida and Federal courts use the “Blockburger” or “same elements” test, as outlined in Blockburger v. U.S., 284 U.S. 299 (1932). Stated simply, the “Blockburger” test asks whether each offense contains an element which the other does not. If they do not each contain an element which the other lacks, then the offenses are the “same offense” and Double Jeopardy will apply.
Jeopardy as to “Lesser Included” Offense
Where a defendant is tried or convicted of a lesser included offense, Double Jeopardy precludes prosecution or punishment for the greater offense, which arises out of the same criminal episode. For example, where a defendant is tried and convicted for reckless driving, double jeopardy will bar a prosecution for vehicular homicide if the alleged vehicular homicide arose out of the same criminal episode. This is because reckless driving is a lesser included offense of vehicular homicide for which the defendant has already been placed in “jeopardy.” Chikitus v. Shands, 373 So. 2d 904 (Fla. 1979). Similarly, Double Jeopardy will preclude a defendant from being tried for first degree felony murder where he or she was already tried and convicted for second degree “depraved mind” murder. State v. Williams, 565 So. 2d 881 (Fla. Dist. Ct. App. 1st Dist. 1990).
Jeopardy as to “Greater” Offense
Where conviction of a greater crime cannot be had without conviction of the lesser crime, robbery the double jeopardy clause bars prosecution for the lesser offense after conviction of the greater one. Thus, where a defendant is convicted of capital murder committed during the perpetration of a robbery, he or she cannot thereafter be charged with robbery in connection with the same criminal episode. Payne v. Virginia, 468 U.S. 1062 (U.S. 1984).