 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Torres12/3/2004
lation has occurred in this case, the State appealed.
ANALYSIS
Both the United States Constitution and the Constitution of the State of Florida contain a Double Jeopardy Clause. U.S. Const. amend. V; art. I, § 9, Fla. Const. The policy and purpose of the constitutional protection afforded by the Double Jeopardy Clause is clear: the Framers believed that the government, with its overwhelming resources and power, should not be permitted to make multiple attempts to convict a person for an alleged offense. Such repeated prosecutions expose the accused to embarrassment, expense, and the suffering that flows from living in a continuing state of apprehension and insecurity. Green v. United States, 355 U.S. 184, 187 (1957). Thus, this constitutional protection "was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Id.; see also Serfass v. United States, 420 U.S. 377 (1975).
"The scope of the Double Jeopardy Clause is the same in both the federal and Florida Constitutions." Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002). Three basic protections emanate from these constitutional provisions. The Double Jeopardy Clause "protects against a second prosecution for the same offense following an acquittal, against a second prosecution for the same offense after a conviction, and against multiple punishments." Rodriguez v. State, 875 So. 2d 642, 644 (Fla. 2d DCA 2004) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)); see also State v. Wilson, 680 So. 2d 411, 413 (Fla. 1996). To determine whether a constitutional violation occurred, we must answer two questions: whether jeopardy attached at the hearing when the court imposed the counseling condition and whether the condition imposed at that hearing constituted punishment within the meaning of the Double Jeopardy Clause.
As to the first question, the record shows that the case against Mr. Torres was dismissed on double jeopardy grounds before trial was ever begun. In Serfass, the United States Supreme Court considered whether the dismissal of an indictment before trial on double jeopardy grounds was appropriate. The Court observed that it "has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is 'put to trial before the trier of facts, whether the trier be a jury or a judge.' " 420 U.S. at 388 (restating the law that in a jury trial, jeopardy attaches when the jury is empaneled and sworn; in the case of a bench trial, when the court begins to hear evidence). Mr. Torres has not been put to a trial before either a jury or a judge so jeopardy could not have attached at the first appearance hearing when the counseling condition was imposed. It is a "fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy." Id. at 393. Because jeopardy had not yet attached in the case against Mr. Torres when the trial court dismissed the charge, and he has not yet been either acquitted or convicted of a crime, the first two protections afforded by the Double Jeopardy Clause are not implicated here. See also United States v. Warneke, 199 F.3d 906, 908 (7th Cir. 1999) (holding that " retrial detention does not trigger the attachment of 'jeopardy' so as to invoke the protection of the Double Jeopardy Clause").
The next question is whether the pretrial release condition that he submit to an evaluation and attend certain sex offender counseling sessions under the authority of section 948.03(4), Florida Statutes (2002), constitutes a punishment within the meaning of the Double Jeopardy Clause, so that if he were subseq
Page 1 2 3 Florida DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|