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Double Jeopardy Law Florida

Oct. 1, 2021

The basic concept of double jeopardy is that nobody can be tried twice for the same offense. The 5th Amendment of the US Constitution states “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Double Jeopardy Definition Florida

Double Jeopardy is defined in the United States Constitution but it applies to state and federal cases alike. Double Jeopardy means that nobody can be tried twice for the same crime that arises out of the same criminal episode. You may remember the movie “Double Jeopardy.” In the movie a woman is convicted for the murder of her husband even though her husband was never actually murdered and was still alive. After being released from prison, she then murders her husband and in the movie she is protected from being prosecuted for this murder because she had already been convicted of his murder before. The application of double jeopardy in that movie is actually false. Based on the movie the second time when the woman actually murders her husband is a completely separate criminal episode since it happens years later and because of that double jeopardy would not protect her from prosecution. Basically if you steal money from someone on two separate occasions, you can be tried and convicted for this theft twice.

The main test laid out as to whether or not double jeopardy applies is the separate elements test in the Blockburger v. United States case by the US Supreme Court. The courts stated that to determine whether or not the “same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied … is whether each provision requires proof of a fact which the other does not.” The Florida Legislature codified that same test in Florida Statute 775.021. For example based on the double jeopardy test you cannot be convicted of DUI and DUI causing property damage for the same incident. However, if you drive under the influence, cause an accident and then leave the scene of the accident. You can be convicted of DUI causing property damage and leaving the scene of an accident. The Florida Statute clearly states that each crime should be punished separately even if all of the crimes arise out of the same criminal episode.

Florida Double Jeopardy Statute

The Florida Statute does explicitly state 3 exceptions to punishing each crime separately even if they arise out of the same criminal episode.

Lesser Included Offenses

If two separate crimes are committed as part of the same criminal episode, you can only be convicted of one crime as long as the second crime is a lesser included offense of the first one. For example if you drive drunk and you decide to accept a plea to reckless driving, the state cannot turn around and then prosecute you again for DUI because reckless driving is a lesser included offense of DUI.

Degrees of the Same Offense

If you drive drunk and have had a prior DUI conviction, you can only be convicted of either DUI or DUI - 2nd offense but not both since the two DUIs are simply different degrees of the same offense.

Identical Elements of Proof

Furthermore, if you drive drunk and cause an accident, the DUI and the DUI causing property damage require the state to prove the same identical elements except that the DUI causing property damage requires an additional element of property damage.

When Does Double Jeopardy Apply?

Another question that often comes up in the double jeopardy context is when does jeopardy actually attach, or in other words at what point is the prosecution barred from prosecuting an individual again for the same charge? Jeopardy attaches after the jury is empaneled or sworn in. This means that you could potentially be scheduled for jury trial for the same charge 50 times or more and double jeopardy would not be implicated unless the jury was actually sworn in. If the case is tried before a judge and not a jury, then jeopardy does not attach until the first witness is sworn in. If the case never goes to trial but is resolved with a plea, jeopardy attaches after the plea has been accepted in court.

In case of a mistrial, there are special rules that apply. If the jury trial is cut short after the jury is sworn in, you can still be retried as long as the mistrial occurred because of a manifest necessity, such as a hung jury or if the mistrial occurred with the defendant’s consent. If however, the case ends in a mistrial because of prosecutorial misconduct, then the defendant cannot be retried.

If you need help with a criminal case and or a double jeopardy issue, feel free to call Kerstin Wade today at 813-401-0130 for a free consultation.