546 F.2d 51
Richard Austin GREENE, Petitioner-Appellant,
Raymond D. MASSEY, Superintendent, Union Correctional
United States Court of Appeals,
Jan. 26, 1977.
John T. Chandler, Fla. Legal Services, Inc., Prison Project, Gainesville Fla., for petitioner-appellant.
Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, Fla., Robert L. Shevin, Atty. Gen., Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, and TUTTLE and TJOFLAT, Circuit Judges.
JOHN R. BROWN, Chief Judge:
Richard Austin Greene (Petitioner) appeals from denial of a writ of habeas corpus. In the initial 1965 Florida state jury trial, Petitioner along with Joseph Manuel Sosa was found guilty of first degree murder. During that proceeding, counsel for Petitioner made, among other motions, a motion for acquittal and a motion for new trial. Both were denied and the death sentence was imposed on both Petitioner and Sosa. Subsequently, on November 5, 1968, the Florida Supreme Court reversed that conviction. In its per curiam decision, the Florida Supreme Court concluded that
(A)fter a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial. The judgments are accordingly reversed and remanded for a new trial. Sosa v. State, Fla., 1968, 215 So.2d 736, 737.
Because of this Circuit's consistent policy from our decision in United States v. Musquiz, 5 Cir., 1971, 445 F.2d 963, forward, the denial of the writ of habeas corpus based on a double jeopardy claim is affirmed.
History Repeated Or Almost So
On remand from the Florida Supreme Court's reversal, Petitioner obtained the transfer of his retrial to the Circuit Court of Orange County, Florida. However, Petitioner's request for a writ of prohibition based on the contention that his retrial for first degree murder would constitute double jeopardy was denied by the state trial court. The denial of this writ based on the double jeopardy claim was affirmed by the Second District Court of Appeal.
Upon retrial, Petitioner was again convicted of first degree murder, but this time with a recommendation for mercy. Consequently, Prisoner is now serving a life sentence. In an appeal to the Fourth District Court of Appeal in which Petitioner again urged the double jeopardy issue, his second conviction was affirmed. Ultimately, a petition for a writ of certiorari which reiterated the double jeopardy claim was denied by the Supreme Court of the United States.
Perhaps weary yet undaunted and asserting that the Double Jeopardy Clause bars retrial once a conviction is reversed because of insufficient evidence, Petitioner sought a writ of habeas corpus from the federal court. In its February 1976 order, the District Court intimated that absent prior precedent from this Court it might have granted Petitioner's request. However, the District Court felt constrained by our decisions in a line of cases beginning with United States v. Musquiz, 5 Cir., 1971, 445 F.2d 963.
Twice No, Two Maybe
Only one outcome determinative issue is before this Court. After a full-fledged jury trial in a state court where both a motion for acquittal and for a new trial are timely made, does the subsequent reversal of a conviction by a state appellate court because of insufficient evidence bar retrial of a person for the same offense a second time? In other words, does the double jeopardy principle encapsulated in the Fifth Amendment necessitate that Petitioner's second conviction for first degree murder be vacated?
Although on superficial examination of the Double Jeopardy Clause its meaning appears to be plain, judicial experience demonstrates the deceptively subtle meaning of twice. For purposes of this appeal, the entire history of double jeopardy need not be considered because of the Bryan-Sapir-Forman trilogy which this Circuit utilized to formulate the Musquiz principle.
The Supreme Court decisions comprising this trilogy entail discussion of reversal on appeal of a federal conviction because of insufficient evidence. For purposes of this Petitioner's appeal from a state court conviction, it is important to recognize the framework of Bryan-Sapir-Forman. They arose in the context of the interplay between the Double Jeopardy Clause and the power of the Courts of Appeals under 28 U.S.C. § 2106 to affect a court's judgment, decree, or order brought appropriately before a Court of Appeals. The ruling of the Supreme Court in Bryan is evident.
A new trial was one of the remedies which petitioner sought. He properly gave the District Court an opportunity after verdict to correct its error in failing to sustain his motion for judgment of acquittal at the conclusion of all the evidence, which claimed error was assigned as a ground for a new trial. We agree that on this record the order for a new trial was a just and appropriate judgment which the Court of Appeals was authorized to enter by 28 U.S.C. § 2106.
Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. ". . . where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial." Francis v. Resweber, 329 U.S. 459, 462 (67 S.Ct. 374, 91 L.Ed. 422). See Trono v. United States, 199 U.S. 521, 533-34 (26 S.Ct. 121, 50 L.Ed. 292), Bryan, supra, at 560, 70 S.Ct. at 321, 94 L.Ed. at 342.
Furthermore, as this Court recognized in Musquiz, supra at 966, "(t)he distinction between Bryan, on the one hand, and Forman and Sapir on the other, seems to turn, under the present state of the law at least, on whether the defendant made a motion for a new trial in the district court." This distinction remains viable.
As indicated, Petitioner through his counsel made both a motion for acquittal and a motion for a new trial while this case was before the state trial court. Since Musquiz the usual practice of this Circuit when reversing a conviction due to insufficient evidence has been to remand with directions for a new trial if a motion for a new trial was made in the trial court. At Petitioner's first trial, one was made. Thus, the only remaining consideration is whether the Florida Supreme Court possessed the power to review judgments, decrees, or orders similar to the power possessed by this Court under 28 U.S.C. § 2106.
That the Supreme Court of Florida has review power at least equal to that possessed by this Court under § 2106 is demonstrated by the recent decision of Tibbs v. State of Florida, Fla., 1976, 337 So.2d 788 (1976). In Tibbs, the Supreme Court of Florida cited as its authority to review convictions for which the death sentence has been imposed, Fla.App.R. 6.16(b) which speaks, as did the Supreme Court of Florida, in terms of the " interests of justice" without regard to the legal insufficiency of the evidence. In light of this power of review and this Court's practice when both a motion of acquittal and for a new trial have been made, we affirm the District Court's denial of a writ of habeas corpus.
If the Double Jeopardy Clause does not preclude such action by this Court exercising its § 2106 powers, it likewise does not prevent similar action by a state court exercising analogous powers.