Waller v. Florida

PETITIONER: Joseph Waller, Jr.
LOCATION: St. Petersburg City Hall

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: State appellate court

CITATION: 397 US 387 (1970)
ARGUED: Nov 13, 1969
DECIDED: Apr 06, 1970
GRANTED: Jun 23, 1969

George R. Georgieff - for the respondent
Leslie H. Levinson - for the petitioner

Facts of the case

Joseph Waller stole a mural from the St. Petersburg City Hall. The city charged and convicted him in municipal court with two ordinance violations. Based on the same acts, Waller was prosecuted and convicted in the Circuit Court of Florida for grand larceny. On appeal, Waller argued that the municipal court and subsequent circuit court prosecutions put him in double jeopardy. The District Court of Appeal of Florida rejected this argument and upheld the conviction.


Do successive municipal and state prosecutions involving charges arising out of the same conduct violate the Fifth Amendment’s protection against double jeopardy?

Media for Waller v. Florida

Audio Transcription for Oral Argument - November 13, 1969 in Waller v. Florida

Warren E. Burger:

Number 24, Waller against the State of Florida.

Mr. Levinson, you may proceed whenever you're ready.

Leslie H. Levinson:

Thank you Mr. Chief Justice and may it please the Court.

This case is on writ of certiorari to the Florida District Court of Appeal which affirmed a grand larceny conviction of the petitioner Joseph Waller, Jr. whom I represent.

This Court ordered the case to be argued immediately after the case of Ashe versus Swenson which we have just heard.

Two issues of great importance in the administration of criminal justice in the states are presented by this case, and each issue in our view independently will provide grounds for reversing the judgment below.

One issue is a double jeopardy issue, that is to say whether the double jeopardy rule as applied to the states through the Due Process Clause of the Fourteenth Amendment is violated where there are successive municipal and state prosecutions of the same defendant arising out of the same conduct.

The second issue in this case, is whether the Due Process Clause of the Fourteenth Amendment is violated where the trial judge imposes the sentence of imprisonment after reading a pre-sentence investigation report which he refuses to make available either to the defendant or to the appellate court.

The facts of the case are not in material dispute and never have been.

On the City Hall of Saint Petersburg, Florida, there was a mural, a piece of canvas attached to the wall by glue or other adhesive.

One day in 1966, in broad daylight and during business hours in the presence of a substantial crowd which include the police officers and other public officials, a group of people entered the City Hall, tore this mural off the wall, brought it downstairs into the street and starting walking through the streets of the city carrying this mural.

The people engaged in this demonstration alleged that the mural portrayed the Negro race in an insulting caricature, and the people were expressing their displeasure by this form of demonstration.

It is undisputed that the petitioner, Joseph Waller, Jr. was a member of the group, and that he personally participated in the removal of the mural from the wall and in carrying it through the streets of town.

A very short while after and as part of the same continuous happening or course of conduct, the police confronted Waller and the other individuals, recovered the mural after a scuffle, by then the mural was in a slightly damaged condition.

Perhaps the only conflict in the testimony of the case is just when the damage occurred, but at any rate, the mural was recovered by the police and Waller was immediately apprehended.

First, Waller was prosecuted in the City Court on the charge that he had violated two city ordinances during that course of conduct.

One ordinance concerns destruction of city property, the other ordinance disorderly breech of the peace.

He plead not guilty to both charges.

A trial was held in the municipal court.

Waller was found guilty on both charges and was sentenced to the maximum of 90 days on each charge.

The sentence is to be served consecutively.

While he was serving, his total of 180 days on the city ordinance violations, an information was charged alleging the felony of grand larceny and this grand larceny prosecution is what turns out to be the subject matter of the present case.

It is undisputed that the events alleged in the information for grand larceny concern the identical defendant, that is the present petitioner, and concern the identical course of conduct, the same day, the same time, the same mural and the same general series of transactions.

And this fact has been conceded by counsel for the State of Florida, is also established by an affidavit, executed by the petitioner and included in our appendix, page 15.

The District Court of Appeal also found as an undisputed fact that the same defendant and the same course of conduct were involved both in the city and in the information for grand larceny filed by the State of Florida.

Potter Stewart:

I understand Mr. Levinson that there is no dispute about the fact that it's the same defendant, and that it was the same general course of conduct.

I don't quite understand how it could be actually the same action that could be disorderly conduct and what was it, a malicious destruction of property or destruction of government property?

Leslie H. Levinson:

Destruction of city property.

Potter Stewart:

City property, that was the subject to the first trial under the city ordinances and then the subject to the second trial under the state law was for larceny?

Leslie H. Levinson:

Well Mr. Justice, in both trials --