Exception to the Rule That Jeopardy Does Not Attach In a Mistrial
In Rutherford v. State, 545 So. 2d 853 (Fla. 1989), this Court stated:
The general rule is that when a mistrial is declared upon the defendant's motion or with his consent or because of a manifest, urgent, or absolute necessity, jeopardy does not attach and the defendant may be retried. McLendon v. State, 74 So. 2d 656 (Fla. 1954); State ex rel. Larkins v. Lewis, 54 So. 2d 199 (Fla. 1951).
An exception occurs when the prosecution goads the defense into moving for a mistrial and gains an advantage from the retrial. Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). Id. at 855.
In Rutherford, a mistrial was ordered after the prosecution committed a willful discovery violation. See id.
In the subsequent retrial, the defendant was convicted and sentenced to death. See id.
On appeal, Rutherford claimed the second trial violated his constitutional rights by placing him in double jeopardy. See id.
In rejecting this argument, this Court stated:
While the prosecutor misapprehended his objection, there is no indication that his motive was to obtain a mistrial.
The objective of seeking to cause the other party to move for a mistrial is to "save" a losing case.
Our review of the record in the first case convinces us the prosecutor's motive was to introduce evidence that tended to convict Rutherford, not to create error that would force a new trial.
As there was no goading the defense into moving for a mistrial, the Oregon v. Kennedy exception does not apply and it was not error to try Rutherford a second time. Id.