Court's Explaination of the Governing Principles Regarding Mistrials and Double Jeopardy

The court explained the governing principles regarding mistrials and double jeopardy in Fuente v. State, 549 So. 2d 652, 657-58 (Fla. 1989): The double jeopardy clause of the fifth amendment of the United States Constitution bars repeated prosecutions for the same offense. Where a mistrial is granted over defense objection, a second trial is barred unless a "manifest necessity" for the mistrial is established. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 2087, 72 L. Ed. 2d 416 (1982). Double jeopardy is generally no bar to a subsequent prosecution when a mistrial was granted in the original trial upon the defendant's motion. Id. at 673, 102 S. Ct. at 2088; Bell v. State, 413 So. 2d 1292, 1294 (Fla. 5th DCA 1982). In Oregon v. Kennedy, the United States Supreme Court held that there is a narrow exception to this rule where it can be shown that the prosecution's "conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." 456 U.S. at 679, 102 S. Ct. at 2091. In rejecting the "overreaching" standard for determining when retrial is barred that was adopted by the Oregon Court of Appeals, the Court explained that prosecutorial conduct that might be viewed as harassment or overreaching sufficient to justify a mistrial, is insufficient to bar a retrial absent such an intent. Id. at 675-76, 102 S. Ct. at 2089-90. "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Id. at 676, 102 S. Ct. at 2089.