
    Guy MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 71-674.
    District Court of Appeal of Florida, Second District.
    April 5, 1972.
    Rehearing Denied May 12, 1972.
    Edward H. Bergstrom, Jr., Madeira Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   MANN, Judge.

Ashe v. Swenson governs this case. Martin and Gordy were tried for robbery. Gordy was convicted. Martin was acquitted. The jury was charged that if they found that Martin conspired with another to commit the robbery he should be found guilty as a principal.

Subsequently he was charged with conspiracy to commit robbery. The evidence at the second trial was identical to that at the first except that, as in Ashe, the evidence of defendant’s identity was stronger at the second trial. It is clear that the jury could not have determined that the robbery didn’t happen, and a fair reading of the record of both trials shows that the jury must have found the evidence of Martin’s identity insufficient at the first, thus determining this question in Martin’s favor.

Benton v. Maryland applied federal double jeopardy standards to the states. Ashe v. Swenson applied the doctrine of collateral estoppel, formerly an aspect of the federal concept of double jeopardy.

The State’s contention that conspiracy is not a lesser included offense is true, hut beside the point.

Reversed and remanded with directions to dismiss the charge.

McNULTY, J., concurs.

LILES, A. C. J., concurs specially.

LILES, A. C. J.

(concurring specially).

Appellant, Guy Martin, was charged along with one John V. Gordy, Jr., of the crime of robbery. They were tried for the crime and the jury found the appellant, Guy Martin, innocent. Subsequently, Martin was tried for conspiracy and was found guilty. He brings this appeal and urges that the trial and conviction of conspiracy constituted double jeopardy. In the trial of the charge of robbery, the trial judge charged the jury on the crime of conspiracy also and the evidence adduced at the trial for robbery is virtually the same evidence used to convict the appellant of conspiracy.

I reluctantly admit that Ashe v. Swenson, 1969, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, is governing in this situation. I simply wish to express my utter and unequivocal disagreement with both the logic and the conclusion reached in that decision.

The court in Ashe came up with a rather novel application of “collateral estop-pel” and applies it in criminal cases and then attempts to define it as “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” They then go on, as was pointed out in Chief Justice Burger’s dissenting opinion, to change double jeopardy to mean the “same evidence” rather than the “same offense.” I share with Justice Burger in his fear that our next step will be that when one defendant murders two people at the same time it will be double jeopardy to try him for the murder of both victims at different trials.

I am forced to concur in the conclusion reached by Judges MANN and McNULTY hut I am likewise forced to point out some of the pitfalls contained in the logic of Ashe v. Swenson, supra. 
      
      . 1970, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.
     
      
      . 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.
     
      
      . Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. Sealfon was an application of the principle of collateral estoppel to forbid prosecution for a substantive offense after acquittal at a prior trial for conspiracy. In Ashe v. Swenson the second trial involved a second victim; in Sealfon, a second offense arising out of the same transaction. Caveat: Annotation — Prosecution for conspiracy as precluding prosecution for substantive offense, and vice versa, 92 L.Ed. 185, following the report of Sealfon, discusses state court decisions necessarily overruled by Ashe.
      
     
      
      . Swindle v. State, Fla.App.2d 1971, 254 So.2d 811.
     
      
      . See also United States v. De Angelo, 3 Cir. 1943, 138 F.2d 466; Note, Twice in Jeopardy, 75 Yale L.J. 262, 283-286 (1965); Mayers & Yarborough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 29-43 (1960); Hanemann v. State, Fla.App.1st 1969, 221 So.2d 228; cert. den., Hanemann v. State, Fla.1969, 228 So.2d 382; vacated and remanded in light of Ashe v. Swenson to 1st D.C.A., Hanemann v. Florida, 1970, 400 U.S. 2, 91 S.Ct. 13, 27 L.Ed.2d 3.
     