We granted the writ in this case to review a narrow question which can best be treated on the basis of the facts as stated by the District Court of Appeal of Florida, Second District, and the holding of that court. Petitioner was one of a number of persons who removed a canvas mural which was affixed to a wall inside the City Hall of St. Petersburg, Florida. After the mural was removed, the petitioner and others carried it through the streets of St. Petersburg until they were confronted by police officers. After a scuffle, the officers recovered the mural, but in a damaged condition.
The petitioner was charged by the City of St. Petersburg with the violation of two ordinances: first, destruction of city property; and second, disorderly breach of the peace. He was found guilty in the municipal court on both counts, and a sentence of 180 days in the county jail was imposed.
Thereafter an information was filed against the petitioner by the State of Florida charging him with grand larceny. It is conceded that this information was based on the same acts of the petitioner as were involved in the violation of the two city ordinances.
Before his trial in the Circuit Court on the felony charge, petitioner moved in the Supreme Court of Florida for a writ of prohibition to prevent the second trial, asserting the claim of double jeopardy as a bar. Relief was denied without opinion. Waller v. Circuit Court for the Sixth Judicial Circuit in and for Pinellas County, 201 So.2d 554 (1967). Thereafter petitioner was tried in the Circuit Court of Florida by a jury and was found guilty of the felony of grand larceny. After verdict in the state court, he was sentenced to six months to five years less 170 days of the 180-day sentence previously
On appeal, the District Court of Appeal of Florida considered and rejected petitioner's claim that he had twice been put in jeopardy because prior to his conviction of grand larceny, he had been convicted by the municipal court of an included offense of the crime of grand larceny. Waller v. State, 213 So.2d 623 (1968). The opinion of the District Court of Appeal first explicitly acknowledged that the charge on which the state court action rested "was based on the same acts of the appellant as were involved in the violation of the two city ordinances." Then, in rejecting Waller's claim of double jeopardy, the court said:
A petition for a writ of certiorari to the Supreme Court of Florida was denied, Waller v. State, 221 So.2d 749 (1968). It is reasonable to assume that the Florida trial court and the District Court of Appeal considered themselves bound by the doctrine of Theisen v. McDavid, 34 Fla. 440, 16 So. 321, which at that time was being reasserted in Hilliard v. City of Gainesville, 213 So.2d 689, and had been reaffirmed by the Florida Supreme Court's denial of a writ of prohibition sought by Waller on the claim of double jeopardy.
We act on the statement of the District Court of Appeal that the second trial on the felony charge by information "was based on the same acts of the appellant as were involved in the violation of the two city ordinances" and on the assumption that the ordinance violations were included offenses of the felony charge.
In Benton v. Maryland, 395 U.S. 784 (1969), this Court declared the double jeopardy provisions of the Fifth Amendment applicable to the States, overruling Palko v. Connecticut, 302 U.S. 319 (1937). Here, as
Florida does not stand alone in treating municipalities and the State as separate sovereign entities, each capable of imposing punishment for the same alleged crime.
Florida has recognized this unity in its Constitution. Article VIII, § 2, of the Florida Constitution (1968 revision) contains a grant of power to the Florida Legislature respecting municipalities:
Moreover, Art. V, § 1, of the Florida Constitution (1885), which does not appear to have been changed in the 1968 Constitutional revision, declares:
These provisions of the Florida Constitution demonstrate that the judicial power to try petitioner on the first charges in municipal court springs from the same organic law that created the state court of general jurisdiction in which petitioner was tried and convicted for a felony. Accordingly, the apt analogy to the relationship between municipal and state governments is to be found in the relationship between the government of a Territory and the Government of the United States. The legal consequence of that relationship was settled in Grafton v. United States, 206 U.S. 333 (1907), where this Court held that a prosecution in a court of the United States is a bar to a subsequent prosecution in a territorial court, since both are arms of the same sovereign.
Thus Grafton, not Fox v. Ohio, supra, or its progeny, Bartkus v. Illinois, supra, or Abbate v. United States, supra, controls, and we hold that on the basis of the facts upon which the Florida District Court of Appeal relied
We decide only
The second trial of petitioner which resulted in a judgment of conviction in the state court for a felony having no valid basis, that judgment is vacated and the cause remanded to the District Court of Appeal of Florida, Second District, for further proceedings in accord with this opinion. In these circumstances we do not reach other contentions raised by petitioner.
It is so ordered.
MR. JUSTICE BLACK joins the opinion of the Court, but nonetheless adheres to the views expressed in his dissenting opinions in Bartkus v. Illinois, 359 U.S. 121, 150 (1959), and Abbate v. United States, 359 U.S. 187, 201 (1959).
MR. JUSTICE BRENNAN, concurring.
I join the holding of the Court that, because the municipal and state courts of a State are part of one
FootNotes
Pike v. City of Birmingham, 36 Ala. App. 53, 53 So.2d 394, cert. denied, 255 Ala. 664, 53 So.2d 396 (1951). See also Ala. Code, Tit. 37, § 594 (1958). United States v. Farwell, 11 Alaska 507, 76 F.Supp. 35 (D. C. Alaska 1948); McInerney v. City of Denver, 17 Colo. 302, 29 P. 516 (1892); State v. Musser, 67 Idaho 214, 176 P.2d 199 (1946); People v. Behymer, 48 Ill.App.2d 218, 198 N.E.2d 729 (1964); State v. Garcia, 198 Iowa 744, 200 N. W. 201 (1924); Earwood v. State, 198 Kan. 659, 426 P.2d 151 (1967); State v. Clifford, 45 La. Ann. 980, 13 So. 281 (1893). See also La. Crim. Pro. Code Ann., Art. 597 (1967); State v. End, 232 Minn. 266, 45 N.W.2d 378 (1950); May v. Town of Carthage, 191 Miss. 97, 2 So.2d 801 (1941); State v. Garner, 360 Mo. 50, 226 S.W.2d 604 (1950); State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962); Ex parte Sloan, 47 Nev. 109, 217 P. 233 (1923); State v. Simpson, 78 N. D. 360, 49 N.W.2d 777 (1951); Koch v. State, 53 Ohio St. 433, 41 N. E. 689 (1895); McCann v. State, 82 Okla.Cr. 374, 170 P.2d 562 (1946); Miller v. Hansen, 126 Or. 297, 269 P. 864 (1928); Webster v. Knewel, 47 S. D. 142, 196 N. W. 549 (1924); State v. Tucker, 137 Wn. 162, 242 P. 363, 246 P. 758 (1926); City of Milwaukee v. Johnson, 192 Wis. 585, 213 N. W. 335 (1927); State v. Jackson, 75 Wyo. 13, 291 P.2d 798 (1955). Gross, Successive Prosecutions by City and State—The Question of Double Jeopardy, 43 Ore. L. Rev. 281 (1964), contains a discussion of the origins and development of this "dual sovereignty" doctrine. See also Note, 1968 Duke L. J. 362.
"to establish, and to abolish, municipalities[,] to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time."
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