State v. Harris, 82-2404
| Decision Date | 16 September 1983 |
| Docket Number | No. 82-2404,82-2404 |
| Citation | 439 So.2d 265 |
| Parties | STATE of Florida, Appellant, v. Jerry Willis HARRIS, a/k/a Rudolph Maximum Harris, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellee.
The state appeals the trial judge's orders granting appellee's motion in arrest of judgment directed toward the robbery count of an indictment and a renewed motion for judgment of acquittal directed to a first-degree murder count in the same indictment. This appeal raises difficult questions concerning post-trial motions, the state's right to appeal certain rulings, and the felony murder rule.
Appellee and two comrades, having decided to commit a robbery, drove to a restaurant called Bohemian Joe's. Appellee then entered the restaurant while the other two sat outside on some nearby benches. Once inside, appellee robbed the proprietor, Josef Tolar, beating him to death in the process. Appellee was eventually arrested, and a grand jury later returned a two-count indictment against him. Count I charged him with premeditated first-degree murder, and count II charged him with robbery. 1
Appellee waived a jury trial, and prior to the bench trial, appellee filed a motion to dismiss, arguing inter alia that the robbery count failed to allege a specific intent to permanently deprive the owner of his property. The trial judge denied this motion.
During the trial, appellee's counsel moved for a judgment of acquittal at the close of the state's case, arguing that the evidence was insufficient to prove a prima facie case of premeditated murder. Counsel also attacked the robbery count, noting that robbery was a specific intent crime and that the indictment had not charged specific intent. The judge asked if felony murder had been charged, and the assistant state attorney stated that by charging first-degree premeditated murder, the state was entitled to proceed on that theory or under the felony murder theory. At that time, the trial judge expressed some concern about the indictment because count I charged only a murder with no mention of the robbery in that count. However, after further discussion, he denied the motion. The state, while conceding throughout the proceedings that robbery was a specific intent crime, argued that the indictment need not allege the specific intent if it tracked the language of the robbery statute, section 812.13(1), Florida Statutes (1981).
The defense then presented its case, and at the close of all the evidence, appellee's counsel again moved for acquittal, and the judge again denied the motion. Eventually, the judge found appellee guilty of first-degree felony murder and of robbery. Upon request, he deferred sentencing so that appellee's counsel could better prepare some post-trial motions.
At the sentencing hearing, appellee's counsel renewed his motion for judgment of acquittal and moved for a new trial and for an arrest of judgment. In the motion for arrest of judgment, counsel argued that the robbery count of the indictment was fatally defective because it failed to allege specific intent to permanently deprive. He maintained that because of the defective nature of the robbery count in the indictment, appellee could not be found guilty of felony murder. He also argued that the judgment should be arrested because count I of the indictment charged only premeditated murder and not felony murder.
After the state responded, appellee's counsel presented arguments on the renewed motion for judgment of acquittal. Counsel argued that though the state had proved a prima facie case of robbery, the defense of voluntary intoxication negated this and that in addition the robbery count had not been properly alleged. The trial judge, in finding appellee guilty, at the time specifically noted the evidence relating to the defense of voluntary intoxication but found that other evidence outweighed the evidence that appellee's intoxication had rendered him unable to form a specific intent. The discussion then turned once more to a consideration of the robbery count of the indictment. The judge again expressed some concern about this count, saying that the state had failed to allege a specific intent to permanently deprive. After reviewing the trial transcript, the judge reaffirmed that he had found appellee not guilty of premeditated murder. He then found that the robbery allegation in count II was improperly made. Then, because of his earlier finding of not guilty on the premeditated murder charge and because he had decided that the robbery count was defective, he believed he could no longer find appellee guilty of first-degree felony murder and so found him guilty of second-degree murder. The assistant state attorney tried to continue the discussion and get the judge to be more specific with his ultimate findings. The assistant state attorney did so primarily because the judge had found during the trial that appellee and his companions went to the restaurant intending to rob. The judge said he "was backing off" that finding because of the defective allegation in count II of the indictment, and when the assistant state attorney tried to press the matter further, the judge became impatient with him and terminated any further discussion. Nevertheless, the assistant state attorney disagreed with the judge's finding, and with permission he made a proffer, saying that even though the robbery count was dismissed as defective, appellee could still be found guilty of felony murder under count I alone. The judge then sentenced appellee to fifty years in prison, denied the motion for new trial, granted the renewed motion for judgment of acquittal as to the first-degree murder count, granted the motion in arrest of judgment as it pertained to the robbery count and denied it as it pertained to the murder count, and found appellee guilty of second-degree murder.
The judge later entered two separate written orders. One order granted the motion in arrest of judgment because of defective allegations in the robbery count. The order also stated that count I charging first-degree murder was not defective. The other order granted the renewed motion for judgment of acquittal as to the first-degree murder count by stating that there was insufficient evidence to support that count. Though that was the stated reason for granting the motion, the actual reason for granting it becomes apparent upon a close examination of the record, which we now undertake.
Initially, however, we must determine whether we have jurisdiction to review these orders. This jurisdictional point was neither raised nor discussed in the briefs. We did direct that the parties respond to that issue in regard to motions that were filed in this appeal. The judge granted appellee's motion in arrest of judgment as it related to the robbery count of the indictment, and the state may properly appeal such an order pursuant to Florida Rule of Appellate Procedure 9.140(c). Therefore, the motion in arrest of judgment is properly before us, and we can review it.
We have more difficulty with what has been labeled as an appeal from the order granting the motion for judgment of acquittal. In considering the propriety of reviewing the renewed motion for judgment of acquittal, we note that in State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976), following a jury trial, the defendant filed what was then called a "motion of acquittal notwithstanding the verdict," which the trial court granted. The state appealed, but the appellate court granted a motion to quash that appeal, pointing out that the state cannot appeal a judgment of acquittal. Furthermore, in Watson v. State, 410 So.2d 207 (Fla. 1st DCA 1982), the court noted that once a trial court grants a motion for judgment of acquittal after a jury trial, there can be no retrial even if the court's ruling is based on an erroneous interpretation of governing legal principles.
Brown also recognizes that a defendant may renew a motion for judgment of acquittal following an adverse jury verdict, and Florida Rule of Criminal Procedure 3.380(c) 2 codifies this practice. However the plain language of this rule limits it to those situations in which a jury returns a guilty verdict. Construing 3.380(c) to include nonjury trials would read language into the rule which we are unwilling to do. Our reading of rule 3.380(c) is bolstered by comparing it with Florida Rule of Criminal Procedure 3.580. 3 That rule, unlike rule 3.380(c), specifically addresses jury and nonjury trials and allows the court to grant a new trial either after a jury verdict of guilt or a finding of guilt by the court. Thus, appellee could not make a renewed motion for judgment of acquittal in the nonjury trial below, and the trial judge, at least technically, had no jurisdiction to entertain such a motion. That being so, the trial judge may have been vulnerable to a timely writ of prohibition.
Nevertheless, we believe that we can, in fact, review the order granting the acquittal motion on this direct appeal by the state. The written order granting that motion states that it is granted because of insufficient evidence to support a first-degree murder conviction. However, a...
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