Third District Court of Appeal

State of Florida 

Opinion filed June 2, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D19-1939

Lower Tribunal No. F19-1892

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The State of Florida,

Appellant,

vs.

Michael Jones,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Tanya 

Brinkley, Judge.

Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney 

General, for appellant.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special 

Assistant Public Defender, and Mary Rojas and Daniela Tenjido, Certified 

Legal Interns, for appellee.

Before FERNANDEZ, HENDON and GORDO, JJ. 

GORDO, J.
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The State of Florida appeals the trial court’s dismissal of its information 

charging Michael Jones with armed burglary of a dwelling with assault or 

battery and aggravated battery with a deadly weapon. We have jurisdiction. 

See Fla. R. App. P. 9.140(c)(1)(A); State v. Mackey, 271 So. 3d 128, 129 

(Fla. 3d DCA 2019). Following the court’s sua sponte discharge of the jury 

without the consent of the defendant and without manifest necessity, the 

court dismissed the State’s information against Jones based on double 

jeopardy. The State argues Jones implicitly consented to the mistrial and 

thereby waived double jeopardy. We reject that contention and affirm the 

order on appeal but write to address the circumstances compelling the 

discharge of the information in this case. 

FACTUAL AND PROCEDURAL BACKGROUND

The State filed an information charging Jones with armed burglary of a 

dwelling with assault or battery and aggravated battery with a deadly 

weapon. Jones pleaded not guilty and demanded a jury trial. A jury was 

selected, impaneled and sworn. The following day, immediately before trial 

began, the State advised the court that it had filed late discovery and earlier 

that morning had provided the defense with tape recordings of several 911 

calls made by the defendant’s daughter. The State posited the evidence

would be used solely for impeachment if the defense opened the door to its 
3

introduction. The defense objected and the court began to conduct a

Richardson1 hearing. 

The State asserted it had obtained the discovery three weeks prior but 

the prosecutor herself did not see the recordings until the morning of trial 

when she was preparing her case. The State claimed there were two 911 

calls by the defense witness, and they were very short. Defense counsel 

argued he was unable to apprise the court of the defense position without 

having heard the tapes. The court reserved ruling and called a recess for 

defense counsel to have an opportunity to listen to the calls, return, and have 

both sides present argument as to the Richardson violation. 

Following a recess, defense counsel advised the court that he had not 

listened to the tapes and instead requested a State-charged continuance. 

Without hearing further argument or making any further inquiry, the court 

stated:

The Court is finding in light of the Richardson

violation, the Court is making a finding that it’s 

inadvertent but it is significant and accordingly 

prejudicial to the defense. So, it is going to be a 

State-charged continuance. How much time do you 

need? How are we running, Loren, on this case?

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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The parties then discussed the fact that the natural speedy trial window 

would soon expire. Perhaps tellingly, defense counsel represented to the 

court that he would not be filing a notice of speedy trial expiration because 

“[t]hat’s not the way [he] want[ed] this case resolved.” 

Without any further discussion with the attorneys on the record, the 

court called the jurors back into the courtroom and discharged them advising

the jurors that they did not have to return to court for this case. The judge 

asked the State and defense whether they had anything to say “in closing to 

[their] jurors.” The State merely thanked them for their service. The defense 

said, “Thank you for your service. I thought I was going to spend some time 

with you. My loss. Thank you.”

The parties and the court agreed to set the case for trial in September 

2019. At no point in time did anyone—the court, the defense or the State—

mention double jeopardy or the declaration of a mistrial.

Then, in August 2019, defense counsel moved to dismiss the 

information against Jones based on double jeopardy grounds arguing that 

there was no manifest necessity for a mistrial, there were other alternatives 

to declaring a mistrial including recessing for a day or two, and that the 

defendant only requested a continuance and never requested or consented 

to the mistrial. The State opposed the motion arguing that although the 
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defendant did not request a mistrial his actions indicated implicit consent. 

The trial court granted Jones’s motion finding that jeopardy attached when 

the jury was sworn and Jones could not be retried for the same offense. 

LEGAL ANALYSIS

I. Discovery Violation – Richardson Hearing

A trial court’s failure to conduct an adequate Richardson inquiry is 

error. See State v. Schopp, 653 So. 2d 1016, 1021 (Fla. 1995) (holding 

harmless error analysis should be applied where a trial court fails to conduct

an adequate Richardson inquiry); Brown v. State, 165 So. 3d 726, 729 (Fla. 

4th DCA 2015). A proper Richardson inquiry requires the lower court to 

address “whether the [discovery] violation was inadvertent or willful, trivial or 

substantial, and whether it caused prejudice or harm to the opposing party.” 

Comer v. State, 730 So. 2d 769, 774 (Fla. 1st DCA 1999) (citations omitted); 

see Andres v. State, 254 So. 3d 283, 293 (Fla. 2018). “In assessing 

procedural prejudice, the trial court must determine, first, whether the 

discovery violation precluded the aggrieved party from adequately preparing 

for trial, and second, what is the proper sanction to invoke for the discovery

violation.” Comer, 730 So. 2d at 774.

“One cannot determine whether the state’s transgression of the 

discovery rules has prejudiced the defendant (or has been harmless) without 
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giving the defendant the opportunity to speak to the question.” Scipio v. 

State, 928 So. 2d 1138, 1146 (Fla. 2006) (quoting Schopp, 653 So. 2d at 

1019). Here, the court’s failure to conduct a proper Richardson inquiry

denied the State and defense an opportunity to be heard or present 

argument regarding procedural prejudice. Based on the State’s proffer and 

the court’s conjecture, the court found the late disclosure was inadvertent, 

but substantial. Then, without the court or defense counsel having reviewed 

the evidence, the court determined the defendant was prejudiced in his trial 

preparation and that a discharge of the jury was warranted.

II. Double Jeopardy 

The Double Jeopardy Clause of the United States and Florida 

constitutions guarantees the protection of an accused against being twice 

put in jeopardy for the same offense. See Amend. V, U.S. Const.; Art. I, § 9, 

Fla. Const. “[T]he constitutional protection also embraces the defendant’s 

‘valued right to have his trial completed by a particular tribunal.’” Arizona v. 

Washington, 434 U.S. 497, 503 (1978). 

The reasons why this “valued right” merits 

constitutional protection are worthy of repetition.

Even if the first trial is not completed, a second 

prosecution may be grossly unfair. It increases the 

financial and emotional burden on the accused,

prolongs the period in which he is stigmatized by an 

unresolved accusation of wrongdoing, and may even 

enhance the risk that an innocent defendant may be 
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convicted. The danger of such unfairness to the 

defendant exists whenever a trial is aborted before it 

is completed. Consequently, as a general rule, the 

prosecutor is entitled to one, and only one, 

opportunity to require an accused to stand trial.

Id. at 503–05. 

“Jeopardy attaches in a criminal proceeding when the jury is impaneled 

and sworn.” Thomason v. State, 620 So. 2d 1234, 1236 (Fla. 1993). “Once 

a jury is [i]mpaneled, the accused in a case has a right to be tried by that 

particular tribunal. This right, however, is not absolute.” Merchant v. State, 

201 So. 3d 146, 151 (Fla. 3d DCA 2016) (citing Thomason, 620 So. 2d at

1237).

Unlike the situation in which the trial has ended in an 

acquittal or conviction, retrial is not automatically 

barred when a criminal proceeding is terminated 

without finally resolving the merits of the charges 

against the accused. Because of the variety of 

circumstances that may make it necessary to 

discharge a jury before a trial is concluded, and 

because those circumstances do not invariably 

create unfairness to the accused, his valued right to 

have the trial concluded by a particular tribunal is 

sometimes subordinate to the public interest in 

affording the prosecutor one full and fair opportunity 

to present his evidence to an impartial jury.

Arizona, 434 U.S. at 505. “For example, when the defendant requests 

declaration of a mistrial, double jeopardy usually is not a bar to 

reprosecution.” Thomason, 620 So. 2d at 1237 (citing Oregon v. Kennedy, 
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456 U.S. 667, 672 (1982)). Absent the defendant’s motion for a mistrial or 

express consent, the court may only appropriately declare a mistrial on its 

own or a prosecution motion “if, after an assiduous inquiry into the possibility 

of another course of action, there is a ‘manifest necessity’ to do so.” 

Merchant, 201 So. 3d at 154–55 (quoting Baez v. State, 699 So. 2d 305, 306

(Fla. 3d DCA 1997)). The “doctrine of manifest necessity stands as a 

command to trial judges not to foreclose the defendant’s option until a 

scrupulous exercise of judicial discretion leads to the conclusion that the 

ends of public justice would not be served by a continuation of the 

proceedings.” United States v. Jorn, 400 U.S. 470, 485 (1971) (citing United 

States v. Perez, 22 U.S. 579, 580 (1824)).

As noted by the United States Supreme Court in United States v. 

Dinitz, 424 U.S. 600 (1976), and reaffirmed by the Florida Supreme Court:

The distinction between mistrials declared by the 

court sua sponte and mistrials granted at the 

defendant’s request or with his consent is wholly 

consistent with the protections of the Double 

Jeopardy Clause. Even when judicial or 

prosecutorial error prejudices a defendant’s 

prospects of securing an acquittal, he may

nonetheless desire “to go to the first jury and, 

perhaps, end the dispute then and there with an 

acquittal.”

Thomason, 620 So. 2d at 1237 (quoting Dinitz, 424 U.S. at 608). “[A]bsent 

circumstances thwarting the State’s one full and fair opportunity to present 
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its case, the right of a defendant to completion of his or her trial by a particular 

tribunal should control.” Id.

a. Trial Court’s Sua Sponte Declaration of Mistrial

To every criminal law practitioner and judge, the swearing in of a jury 

should signal a critical point in the trial and automatically trigger the 

recognition that this jury of the defendant’s peers will be adjudicating the 

State’s charges against the accused barring manifest necessity or consent 

by the defendant.

Without a defendant’s consent to a mistrial, manifest necessity can 

only be demonstrated where “the trial court has considered and rejected all 

possible alternatives.” Merchant, 201 So. 3d at 151–52 (quoting Torres v. 

State, 808 So. 2d 234, 235 (Fla. 2d DCA 2001)); see also Thomason, 620 

So. 2d at 1238 (observing that manifest necessity “requires trial judges, at 

the very least, to evaluate and discuss available alternatives before declaring 

a mistrial over the objection of the defendant”); Jorn, 400 U.S. at 487. The 

trial court, therefore, has a duty-bound obligation to explore all possible 

alternatives and hear the parties’ arguments before declaring a mistrial. A

declaration of mistrial is a last resort reserved for instances of “manifestly 

urgent and absolute necessity.” Merchant, 201 So. 3d at 151 (quoting 

Thomason, 620 So. 2d at 1239). “The trial court’s failure to make an inquiry, 
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develop a proper record, and consider alternatives before declaring a mistrial 

forecloses a conclusion that a mistrial was even warranted, let alone one 

supported by manifest necessity.” Id. at 155. The court’s improper discharge 

of the jury in this case—without the defendant’s consent, without any 

argument or showing by the State of manifest necessity and without 

considering alternatives—was an unwarranted declaration of a mistrial

based on “assumption, inference and speculation.” See id. at 154. 

b. Failure to Object Does Not Imply Waiver

“[I]f the jury is discharged without the defendant’s consent, for a legally 

insufficient reason, and without an absolute necessity, such a discharge is 

equivalent to an acquittal and precludes a subsequent trial for the same 

offense.” Spaziano v. State, 429 So. 2d 1344, 1345 (Fla. 2d DCA 1983).

The State, however, asks this Court to view the defendant’s failure to 

object to the mistrial as an implicit waiver of the defendant’s constitutional 

rights. We find “this position is without merit, as the law on this point is wellestablished: a defendant’s mere failure to object to a declaration of mistrial 

is not tantamount to consent.” Merchant, 201 So. 3d at 152; see also State 

v. Grayson, 90 So. 2d 710, 713 (Fla. 1956) (noting that “silence of the 

defendant on trial for a crime or his failure to object or protest against an 

illegal discharge of the jury” does not constitute consent to the trial court’s 
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declaration of a mistrial); Allen v. State, 41 So. 593, 593 (1906) (holding that 

the defendant’s “silence or failure to object or protest against the discharge 

of the jury did not constitute a consent or a waiver of his constitutional right” 

of double jeopardy); Feria v. Spencer, 616 So. 2d 84, 84 (Fla. 3d DCA 1993) 

(holding a “defendant’s silence when the trial court granted the mistrial 

cannot be construed as consent”); Spaziano, 429 So. 2d at 1346 (“A

defendant’s silence or his failure to object or protest against an illegal 

discharge of the jury before a verdict, does not constitute a consent, and is 

not a waiver of the constitutional prohibition against a subsequent trial for the 

same offense if the jury has been improperly discharged.”).

Moreover, Jones specifically requested a State-charged continuance 

of the trial. He did not request nor consent to the declaration of a mistrial. 

We cannot, therefore, construe Jones’s silence or his failure to object to the 

court’s sua sponte discharge of the jury as consent to a waiver double

jeopardy. 

c. A Cautionary Tale 

The State additionally argues that the defense attorney’s agreement to

reset the trial for a future date should be taken as an implicit waiver of double 

jeopardy. Defense counsel announced he had no intention of filing a notice 

of expiration of speedy trial, agreed to reset the trial for a future date and 
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thanked the jury for their service, stating, “I thought I was going to spend 

some time with you. My loss.” We do not find that having thanked the jury 

for their service and agreeing to a future trial date is tantamount to consent

to a waiver of double jeopardy. 

The State asks this Court to construe defense counsel’s representation 

of his client’s interests as a waiver of double jeopardy protection. Defense 

counsel’s duty, however, is to represent the interests of his client within the 

bounds of the law—not to safeguard the State’s right of prosecution. 

In the criminal justice system, the court, the State and the defense each 

has a well-defined role. “[T]he judge is not a mere moderator, but is the 

governor of the trial for the purpose of assuring its proper conduct and of 

determining questions of law.” Geders v. United States, 425 U.S. 80, 86

(1976) (quoting Quercia v. United States, 289 U.S. 466, 469 (1933)). “If truth 

and fairness are not to be sacrificed, the judge must exert substantial control 

over the proceedings.” Id. at 87. The trial judge has broad discretion, within 

the limits of the adversary system, to “cope with the complexities and

contingencies inherent in the adversary process.” Id. at 86. However, the 

judge must remain a neutral arbiter of the matters presented by the parties. 

Greenlaw v. United States, 554 U.S. 237, 243 (2008). The court’s function

as governor of the proceedings and neutral arbiter ensures that the parties 
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receive a full and fair trial. Prosecutors serve as officers of the court. See

Gore v. State, 719 So. 2d 1197, 1202 (Fla. 1998). The prosecutor’s job is to 

serve justice and conduct a fair and impartial trial. See id.; Stewart v. 

State, 51 So. 2d 494, 495 (Fla. 1951). The defense’s role, in turn, is to 

provide meaningful representation and to fully, fairly and zealously advocate 

the defendant’s cause within the bounds of the law. Wilson v. Wainwright, 

474 So. 2d 1162, 1165 (Fla. 1985); see Van Poyck v. State, 91 So. 3d 125, 

130 (Fla. 2012).

Here, the State’s duty to serve justice and the public interest entailed 

a duty to make a timely, appropriate objection to the illegal discharge of the 

jury which would bar subsequent prosecution and thwart the State’s one full 

and fair opportunity to present evidence to an impartial jury in the prosecution 

of the accused. The State sat quietly as the court made Richardson findings 

without even hearing argument and it sat quietly as the impaneled jury was 

being discharged. We find the defendant’s silence in this case could not be 

construed as consent to a mistrial. But the State’s silence in the face of the 

trial court’s error was the functional equivalent of consent to the discharge of 

the information in this case. 
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CONCLUSION

Upon being apprised of a discovery violation, the trial court erred when 

it did not conduct a proper Richardson inquiry and further erred when it failed 

to explore alternatives to declaring a mistrial. However, there was no implicit 

consent to waiver of double jeopardy by the defendant resulting from the trial 

court’s sua sponte improper declaration of a mistrial. Because the trial 

court’s declaration of a mistrial was made in the absence of manifest 

necessity, its subsequent dismissal of the State’s information based on 

double jeopardy was proper.

Affirmed.