Exposito v. State

• Decision Date: 23 December 2004
• Docket Number: No. SC03-1248.,SC03-1248.
• Citation: 891 So.2d 525
• Parties: Alex EXPOSITO, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

891 So.2d 525

Alex EXPOSITO, Petitioner, v. STATE of Florida, Respondent.

No. SC03-1248.

Supreme Court of Florida.

December 23, 2004.

Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Richard L. Polin, Bureau Chief, Criminal Appeals and Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, FL, for Respondent.

PARIENTE, C.J.

This case presents the issue of whether section 924.07, Florida Statutes (2004), authorizes a State appeal from a post-trial order reducing a charge pursuant to Florida Rule of Criminal Procedure 3.620. The Third District Court of Appeal answered this question in the affirmative. See State v. Exposito, 854 So.2d 674, 675 (Fla. 3d DCA 2003)

. However, the Third District certified conflict with the Fourth District Court of Appeal decision in State v. Richars, 792 So.2d 570, 571 (Fla. 4th DCA 2001).¹ Based on the plain language of the statute, we hold that section 924.07 does not authorize a State appeal from a post-trial order reducing a charge.

FACTS AND PROCEDURAL HISTORY

In 1999, the Legislature reduced the statutory threshold for a conviction of trafficking in cannabis under section 893.135, Florida Statutes, from fifty to twenty-five pounds of cannabis. See ch. 99-188, § 9, at 1056, Laws of Fla. In March of 2001, Exposito was charged with one count of possession with intent to sell cannabis (count I), and one count of trafficking in cannabis pursuant to section 893.135(1)(a)(1), Florida Statutes (2000), as amended (count II). The State nolle prossed (i.e., voluntarily dismissed) count I, and the jury returned a verdict of guilty as charged on count II.

Prior to sentencing, Exposito filed a motion seeking a new trial or a reduction of count II to possession of cannabis with intent to distribute under rule 3.620. Exposito argued he could not be legally sentenced for a conviction of trafficking, a first-degree felony, in light of the Second District's decision in Taylor v. State, 818 So.2d 544, 550 (Fla. 2d DCA 2002), disapproved of by Franklin v. State, 887 So.2d 1063 (Fla. 2004),

declaring chapter 99-188 unconstitutional. The trial court, bound by Taylor,² adjudged Exposito guilty of the lesser-included offense of possession with intent to sell, a third-degree felony. Exposito was sentenced to two years' community control. The State appealed the reduction of the trafficking conviction.

Exposito argued on appeal that the Third District was without jurisdiction to hear the State's appeal. Exposito relied on Richars, in which the Fourth District held that a State appeal from a post-trial order reducing a charge to a lesser-included offense pursuant to rule 3.620 was not authorized under section 924.07.

The Third District declined to follow Richars, relying instead on its decision in State v. Hankerson, 482 So.2d 1386 (Fla. 3d DCA 1986). See Exposito, 854 So.2d at 675

. In Hankerson, the Third District held that section 924.07 authorized a State appeal from a pretrial order reducing a charge of robbery to theft. See

482 So.2d at 1387. The court reasoned that "[a]nalytically, an order reducing a charge set forth in the information or indictment to some lesser-included charge is, despite its label, an order dismissing the charge in the information." Hankerson, 482 So.2d at 1387.

In Exposito, the Third District found that rationale dispositive and held that section 924.07 authorized a State appeal from a post-trial order reducing Exposito's conviction to a lesser-included offense. See 854 So.2d at 675. The Third District certified conflict with Richars. See id. Additionally, in accord with its decision in State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), approved, 887 So.2d 1063 (Fla. 2004), holding chapter 99-188 constitutional, the Third District reinstated Exposito's charge and conviction. See id.

ANALYSIS

The State's right to appeal in a criminal case must be "expressly conferred by statute." Ramos v. State, 505 So.2d 418, 421 (Fla.1987); see also State v. Gaines, 770 So.2d 1221, 1227 n. 8 (Fla.2000)

(recognizing that the "State's right to appeal an adverse ruling is a limited one that is strictly governed by statute"). Thus, the issue we must decide is whether the State was authorized under section 924.07 to appeal a post-trial order reducing a charge pursuant to rule 3.620.³

Section 924.07 provides:

(1) The state may appeal from:

(a) An order dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release.

(b) An order granting a new trial.

(c) An order arresting judgment.

(d) A ruling on a question of law when the defendant is convicted and appeals from the judgment. Once the state's cross-appeal is instituted, the appellate court shall review and rule upon the question raised by the state regardless of the disposition of the defendant's appeal.

(e) The sentence, on the ground that it is illegal.

(f) A judgment discharging a prisoner on habeas corpus.

(g) An order adjudicating a defendant insane under the Florida Rules of Criminal Procedure.

(h) All other pretrial orders, except that it may not take more than one appeal under this subsection in any case.

(i) A sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921.

(j) A ruling granting a motion for judgment of acquittal after a jury verdict.

(k) An order denying restitution under s. 775.089.

(l) An order or ruling suppressing evidence or evidence in limine at trial.

(m) An order withholding adjudication of guilt in violation of s. 775.08435.

(2) An appeal under this section must embody all assignments of error in each pretrial order that the state seeks to have reviewed. The state shall pay all costs of the appeal except for the defendant's attorney's fees.

§ 924.07, Fla. Stat. (2004). In construing this statute, this Court must give the "statutory language its plain and ordinary meaning," Seagrave v. State, 802 So.2d 281, 286 (Fla.2001), and is not "at liberty to add words ... that were not placed there by the Legislature." Hayes v. State, 750 So.2d 1, 4 (Fla.1999). Further, "statutes which afford the government the right to appeal in criminal cases should be construed narrowly." State v. Jones, 488 So.2d 527, 528 (Fla.1986).

The Third District held in this case that the State was authorized under section 924.07(1)(a) to appeal the trial court's order reducing the charge under rule 3.620 because "an order reducing a charge set forth in the information or indictment to some lesser-included charge is, despite its label, an order dismissing the charge in the information." Exposito, 854 So.2d at 675 (quoting Hankerson, 482 So.2d at 1387). The State argues that this Court should approve the Third District's decision or, in the alternative, hold that the State has authority to appeal under section 924.07(1)(j) because a post-trial reduction to a lesser-included offense is in effect a judgment of acquittal after a jury verdict. In contrast, the Fourth District held in Richars that it did not have jurisdiction to consider a similar State appeal because none of the provisions of section 924.07(1) expressly authorize such an appeal. See 792 So.2d at 571. We conclude that the plain language of section 924.07(1) does not authorize the State to appeal an order reducing the charge under rule 3.620.

The Legislature has set forth thirteen specific instances in which the State can appeal in a criminal case, including appeals from three types of post-trial orders: (1) from an order granting a motion for judgment of acquittal after a jury verdict as provided for by Florida Rule of Criminal Procedure 3.380(c)⁴; (2) from an order granting a new trial as provided for by Florida Rule of Criminal Procedure 3.580⁵; and (3) from an order arresting judgment as provided for by Florida Rule of Criminal Procedure 3.610.⁶ Absent from this comprehensive list is authorization for the State to appeal a post-trial order adjudicating the defendant guilty of a lesser included offense under rule 3.620. Further, although the Legislature has on several occasions expanded the State's opportunities to appeal in criminal cases by amending section 924.07(1),⁷ the Legislature has not chosen to amend section 924.07(1) to expressly authorize an appeal of a post-trial order reducing the charge on which the defendant is convicted.

The Third District has implicitly acknowledged the lack of express authority in section 924.07(1) for an appeal of an order reducing a charge after trial by concluding that the State's appeal in this case was authorized as an appeal from "[a]n order dismissing an indictment or information or any count thereof" as provided for in section 924.07(1)(a). Relying exclusively on its prior decision in Hankerson, the Third District reasoned that the order in this case was included within section 924.07(1)(a) because an order reducing the charge is, "[a]nalytically" and "despite its label," an order dismissing the information on the offense charged. See Exposito, 854 So.2d at 675

(quoting Hankerson, 482 So.2d at 1387). However, because of the different procedural posture in Hankerson, we conclude that the Third District's reliance on that case was misplaced.

While Exposito's case concerns a post-trial motion to reduce the charge under rule 3.620, Hankerson concerned a pretrial motion to reduce the charge under Florida Rule of Criminal Procedure 3.190(c)(4). See Hankerson, 482 So.2d at 1387

.⁸ The

trial court granted the motion and issued an order reducing the charge of robbery to theft. See id. Central to the Third District's decision in Hankerson that the State had the authority to appeal the trial court's order granting the pretrial...