Wilson v. State

743 So. 2d 1222, 1999 Fla. App. LEXIS 15141, 1999 WL 1036565

Opinion

PER CURIAM.

Eugene Wallace Wilson petitions this court for a writ of prohibition, arguing that any attempt by the state to try him again would violate his constitutional protection against double jeopardy. We have jurisdiction. Thomason v. State, 620 So.2d 1234 (Fla.1993). We also find that petitioner’s arguments are well-taken and we grant relief.

Wilson was charged with cultivation of cannabis and possession of more than 20 grams of cannabis in case number 98-760-CF in the Circuit Court for Columbia County. In the state’s case-in-chief, the arresting officer testified that the defendant confessed to the crimes after having been given Miranda warnings. The first defense witness was a third party who was present at the time of the interrogation and who testified that Wilson was not advised of his rights in accordance with Miranda. The presiding judge excused the jury at that point and expressed the view that the jury had been irrevocably tainted by this evidence. The court stated that this issue should have been resolved at a pretrial hearing, while the defense asserted this was proper impeachment of the arresting officer. Over defense counsel’s objection, a mistrial was ordered.

When the defense is opposed to a mistrial, that remedy should be resorted to only where there is a manifest necessity. Thomason, 620 So.2d at 1237. Further, the court must consider and find wanting any possible alternatives before declaring a mistrial. Id. at 1239. In the instant case, this evidence appears to have been admissible for impeachment purposes pursuant to section 90.608(5), Florida Statutes. In response to an order to show cause, the state concedes that mistrial was unnecessary in the proceedings below and that petitioner is entitled to relief.

Upon consideration of the above, we grant the petition and issue the writ of prohibition. It is hereby ordered that further prosecution of Eugene Wallace Wilson on criminal charges arising from the incident underlying the case in question is prohibited.

BARFIELD, C.J., MINER and ALLEN, JJ., concur.