Burton v. State

• Decision Date: 25 March 1992
• Docket Number: No. 91-00732,91-00732
• Citation: 596 So.2d 733
• Parties: 17 Fla. L. Weekly D821 Thomas J. BURTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 733

596 So.2d 733

17 Fla. L. Weekly D821

Thomas J. BURTON, Appellant, v. STATE of Florida, Appellee.

No. 91-00732.

District Court of Appeal of Florida Second District.

March 25, 1992.

James Marion Moorman, Public Defender, Bartow, and Timothy A. Hickey, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Michele Taylor, Asst. Atty. Gen., Tampa, for appellee.

PARKER, Judge.

Thomas J. Burton appeals his conviction for carrying a concealed firearm, raising a double jeopardy argument. We agree with Burton and reverse his conviction for carrying a concealed firearm.

Burton was tried in a bench trial for charges of aggravated battery with a firearm and carrying a concealed firearm. Following the presentation of the state's evidence, the defense moved for a judgment of acquittal, contending that the state had failed to prove a prima facie case of guilt as to both crimes. Regarding the concealed firearm charge, the defense argued that the state presented no evidence as to where the gun was recovered or that it was a functioning firearm. The trial court denied the motion. The defense then rested without presenting any evidence. The trial court found Burton guilty of aggravated battery and pronounced him not guilty of the concealed weapon charge because the state produced no evidence that the weapon was concealed. ¹ Thereafter, the state requested to reopen its case in order that the trial court could consider additional testimony from another witness concerning whether the firearm was concealed. The trial court permitted this, and following that testimony, the trial court found Burton guilty of carrying a concealed firearm.

Burton argues that he illegally was put in jeopardy twice for the same charge when the trial court permitted the state to reopen its case after the trial court had found him not guilty. We must determine whether the trial judge's oral pronouncement of not guilty was sufficient to acquit Burton immediately of the concealed firearm charge. We find no Florida precedent directly on point; however, similar cases from other jurisdictions have addressed the issue.

One Florida case which is somewhat analogous to the instant case is Watson v. State, 410 So.2d 207 (Fla. 1st DCA 1982). In Watson, the defendant moved for acquittal after the state rested. The trial court granted the motion. The following day the state asked the court to reconsider its acquittal and pointed out the court's error. Defense counsel conceded that the trial court entered the acquittal erroneously but argued that Watson would be placed in double jeopardy if the court reinstated the charge. The trial court granted the state's request and required Watson to proceed. The First District held that the trial court erred because jeopardy had attached once Watson obtained an acquittal. The First District held that further proceedings devoted to the resolution of factual issues depicting the elements of the charged offense constituted a retrial. The First District, however, stated that a trial judge could reconsider an erroneous ruling granting a motion for judgment of acquittal in some situations but failed to delineate in what situation reconsideration would be appropriate.

Florida cases indicate that the judgment of not guilty is effective once the judge pronounces it. In Wheeler Fertilizer Co. v. Rogers, 49 So.2d 83, 87 (Fla.1950) (Hobson, J., dissenting), Justice Hobson declared that "[a]n order is usually considered rendered when it is pronounced by the judge in open court." In deciding when the time begins to run for speedy trial purposes, the supreme court held that it was from the time the trial court denied in open court the motion to dismiss because "a decision is rendered when the controversy is decided and the judgment is pronounced in court." Sparkman v. McClure, 498 So.2d 892, 895 (Fla.1986). The Sparkman court, however, found it necessary for the clerk to make a notation of the order. See also McDermott v. City of Clearwater, 526 So.2d 121, 122 n. 1 (Fla. 2d DCA), review denied, 534 So.2d 400 (Fla.1988); Briseno v. Perry, 417 So.2d 813, 813-14 (Fla. 5th DCA 1982), review denied, 427 So.2d 736 (Fla.1983) ("a judgment or order is rendered and is valid and binding when it is orally given, pronounced or announced, although the only competent evidence of that judicial act is a memorial or record in the form of a later written and signed order or judgment"). These cases, although instructive, are not conclusive because their facts and those of the instant case are different and the clerk in the instant case never noted the not guilty judgment.

Cases from other jurisdictions have reached differing conclusions on this issue. In State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987), the Supreme Court of Connecticut held that it was an abuse of discretion for the trial court to permit the state to reopen its case-in-chief after the defendant's motion for judgment of acquittal at the end of the state's case pointed out to the state the specific infirmity in the state's proof. Likewise, in People...