Third District Vacates First-Degree Murder Conviction-Defendant discharged because of Trial Court error in granting mistrial.

Merchant v. State, 3D13-3119 (April 6, 2016)

In a factually unique case, the Third District reversed a first-degree murder conviction and remanded with instruction that the Trial Court vacate a life sentence and discharge the defendant.

Mr. Merchant was charged with one count first-degree murder and one count second-degree murder.  The Court ordered a mistrial in the first trial and upon retrial, the defendant was convicted of first-degree murder and acquitted as to attempted second-degree murder.  However, prior to retrial the defense filed a motion to dismiss because the Trial Court’s mistrial order was erroneous, and retrial was barred by double jeopardy.  The Third District agreed.

During the first trial two individuals were selected to serve on the jury – one on the panel, and one as an alternate.  The individuals gave answers during jury selection that inferred that they were related to one another; however, neither individual advised the Court that they were siblings.  During deliberations the jury notified the court that it was deadlocked. The alternate juror sent a note to the bailiff inquiring as to what was going on, and informed the bailiff that his sister was a member of the panel.  Without questioning the defense as to what should be done, and without conducting any inquiry of the siblings, (to even confirm that they were siblings), the Court declared a mistrial.  The defendant was not asked to consent, but trial counsel did not affirmatively object.

On appeal, the defense argued that in the absence of manifest necessity the Court was required to obtain the defendant’s consent prior to ordering a mistrial.  In reversing, the Third District explained first that a defense counsel’s failure to object to mistrial is not tantamount to consent.  Absent consent, a mistrial can only be granted in cases of manifest necessity.  Moreover, without a defendant’s consent the Court is required to consider all possible alternatives prior to granting a mistrial. Here, the Court failed to consider any alternatives, and there was no record showing as to manifest necessity.  Because the Court granted the mistrial, thereby allowing retrial, with neither consent nor a showing of manifest necessity, the Court erred.  Thus, since the Court could not lawfully grant the mistrial, the State could not retry the defendant without violating double jeopardy principles.  The defendant’s conviction for first-degree murder is vacated.

This ruling is not final.  The State filed a motion for rehearing, and the matter is still pending in the Third District.





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