State v. Gaines, SC95738.

• Decision Date: 02 November 2000
• Docket Number: No. SC95738.,SC95738.
• Citation: 770 So.2d 1221
• Parties: STATE of Florida, Appellant, v. Larry Lamar GAINES, Appellee.
• Court: Florida Supreme Court

770 So.2d 1221

STATE of Florida, Appellant, v. Larry Lamar GAINES, Appellee.

No. SC95738.

Supreme Court of Florida.

November 2, 2000.

Robert A. Butterworth, Attorney General, Michael J. Neimand, Senior Assistant Attorney General, and Douglas J. Glaid, Assistant Attorney General, Fort Lauderdale, Florida, for Appellant.

Richard L. Jorandby, Public Defender, and Bernard S. Fernandez, Assistant Public

Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellee.

PARIENTE, J.

We have for review State v. Gaines, 731 So.2d 7 (Fla. 4th DCA 1999), in which the Fourth District Court of Appeal dismissed the State's appeal because it violated the constitutional prohibition against placing a defendant in double jeopardy and, on rehearing, declared section 924.07(1)(l), Florida Statutes (1997), unconstitutional. This Court has mandatory jurisdiction over decisions of district courts of appeal declaring a state statute unconstitutional. See art. V, § 3(b)(1), Fla. Const.

Because this statute expressly violates article V, section 4(b)(1) of the Florida Constitution, which vests exclusive power in this Court to authorize non-final appeals, we affirm the decision of the Fourth District. Further, regardless of whether the order the State seeks to appeal is deemed a "final" or "non-final" order, we agree with the Fourth District that the constitutional prohibition against double jeopardy would prevent the retrial of appellee, Larry Lamar Gaines.

PROCEDURAL BACKGROUND

The pertinent facts of this case are as follows. Gaines was charged with possession of cocaine with intent to sell. Gaines did not file a pretrial motion to suppress and the case proceeded to trial before a jury. However, at the conclusion of the State's case, Gaines moved for a judgment of acquittal and also moved to suppress the evidence of cocaine on the basis that it was illegally obtained. The trial court denied Gaines' motion for judgment of acquittal but granted Gaines' motion to suppress on the authority of Popple v. State, 626 So.2d 185 (Fla.1993). After the State announced that it had no other evidence to prove its case, the trial court entered an order dismissing the case against Gaines. The trial court's rulings denying Gaines' motion for judgment of acquittal, granting Gaines' motion to suppress and dismissing the case are all incorporated in one written order.

The State appealed the trial court's order, arguing that the trial court erred in suppressing the evidence. See Gaines, 731 So.2d at 8. Gaines filed a motion to dismiss the appeal "on the ground that any error in the suppression [was] moot because, having been in jeopardy, he cannot be retried." Id. On this basis, the Fourth District granted the motion to dismiss the appeal. See id.

After the Fourth District rejected the State's appeal on double jeopardy grounds, the State petitioned for rehearing, citing section 924.07(1)(l) as independent statutory authority for the appeal. Section 924.07(1)(l) provides that the State may appeal an "order or ruling suppressing evidence or evidence in limine at trial." In denying the State's motion for rehearing, the Fourth District held section 924.07(1)(l) unconstitutional, reasoning that "nothing in the Florida Constitution ... authorizes the legislature to allow review of non-final orders by district courts of appeal." Gaines, 731 So.2d at 9.

On appeal to this Court, the State argues that the Fourth District misconstrued the trial court's order suppressing the evidence as being a "non-final order." According to the State, when the trial court granted Gaines' motion to suppress and entered an order dismissing the drug charge, the State's case against Gaines had come to end. Thus, the State claims that the trial court's order suppressing evidence was not a non-final order, but rather a final order of suppression and dismissal, which can be appealed under section 924.07(1)(l).

We disagree with the State's characterization of the trial court's order suppressing evidence as a "final order." As this Court has held:

[T]he test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.

S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Therefore, an order or ruling suppressing evidence at trial is a non-final order because judicial labor is still required to effectuate a termination of the case. Cf. State v. Delvalle, 745 So.2d 541, 542 (Fla. 4th DCA 1999) (finding an order granting the defendant's rule 3.800(a) motion was not a final order where the defendant had not been resentenced and judicial labor was still required).

Specifically, in this case, when the trial court granted Gaines' motion to suppress during trial, the judicial labor did not come to an end because the criminal charge was still pending against Gaines. Only after the State announced that it had no other evidence to establish Gaines' guilt, did the trial court proceed to dismiss the charge. It was not until the trial court dismissed the charges against Gaines that the judicial labor came to an end. The fact that the order granting the motion to suppress was contained in the same written order as the order of dismissal does not convert the trial court's ruling on the motion to suppress into an independent final order that is immediately appealable. Accordingly, we address whether section 924.07(1)(l) may provide the State with the authority to appeal a non-final order without violating the Florida Constitution.

CONSTITUTIONALITY OF SECTION 924.07(1)(l)

Article V, section 4(b)(1) of the Florida Constitution vests in this Court exclusive power to determine the authority of district courts of appeal to hear appeals of non-final orders in both civil and criminal cases:

District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.

(Emphasis supplied.)

In State v. Smith, 260 So.2d 489, 489 (Fla.1972), we held that another subsection of section 924.07¹ was unconstitutional because "the jurisdiction of the District Court to entertain such interlocutory appeals may be granted only by rule of this Court." In Smith, we relied on the prior constitutional provision, article V, section 5(3), Florida Constitution (1968), which contained a provision substantially similar to that now found in article V, section 4(b)(1).² As we unequivocally explained in Smith:

The Constitution does not authorize the legislature to provide for interlocutory review. Any statute purporting to grant interlocutory appeals is clearly a declaration of legislative policy and no more.

Until and unless the Supreme Court of Florida adopts such a statute as its own... the purported enactment is void.

260 So.2d at 491 (quoting State v. Smith, 254 So.2d 402, 404 (Fla. 1st DCA 1971)).

Ten years later in R.J.B. v. State, 408 So.2d 1048, 1050 (Fla.1982), we held another statute unconstitutional that we construed to authorize a juvenile to take an immediate appeal of an order waiving the juvenile court's jurisdiction and authorizing the juvenile to be tried as an adult. In R.J.B., we relied on the reasoning of Smith and the plain language of article V, section 4(b)(1). See R.J.B., 408 So.2d at 1050. We interpreted that constitutional provision as vesting this Court with "the sole authority of deciding when appeals may be taken from interlocutory orders." Id. Consistent with our prior case law and the unequivocal language of article V, section 4(b)(1), we find that this Court alone has the power to define the scope of interlocutory appeals, and, therefore, section 924.07(1)(l) is unconstitutional to the extent that it provides the State with the right to an interlocutory appeal not provided by court rule.

OUR PROCEDURAL RULES AND DOUBLE JEOPARDY PRINCIPLES

Although only this Court may define the scope of interlocutory appeals, this Court's procedural rules do not provide authority for the State to appeal an order granting a motion to suppress during trial. See Savoie v. State, 422 So.2d 308, 311 (Fla.1982); see generally Fla. R.App. P. 9.140(c)(1). This is in contrast to rule 9.140(c)(1)(B), which authorizes appeals of trial court orders suppressing evidence before trial.

Presumably, the failure of the rules to provide for an appeal of a ruling on a motion to suppress during trial is in recognition of the double jeopardy implications that would arise if an appeal were authorized in that circumstance. Even if the Legislature possessed the authority to establish the categories of non-final appeals that the district courts should hear and even if the appeal was authorized by the applicable appellate rules, retrial in this case would have been barred because of double jeopardy principles. See Gaines, 731 So.2d at 9 n. 2.

The Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution protects an accused against being twice put in jeopardy for the same offense. See Thomason v. State, 620 So.2d 1234, 1236 (Fla. 1993). As we explained in Thomason, jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn. See id. (citing Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), and State ex rel. Williams v. Grayson, 90 So.2d 710, 713 (Fla.1956)); see also Fla. R.Crim. P. 3.191(c) (providing that the trial is deemed to have commenced when the jury panel for that specific trial is sworn for the voir dire examination or, if the jury is waived, when the trial...