State v. Lundy, 3D16–801
| Decision Date | 13 December 2017 |
| Docket Number | No. 3D16–801,3D16–801 |
| Citation | 233 So.3d 1252 |
| Parties | The STATE of Florida, Appellant, v. Major LUNDY, Appellee. |
| Court | Florida District Court of Appeals |
Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellant.
Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellee.
Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
The State of Florida seeks to appeal an order granting a defendant's renewed motion for a judgment of acquittal following trial, a jury deadlock, and the trial court's declaration of a mistrial. We dismiss for lack of jurisdiction.
Major Lundy Jr. ("Lundy") was charged with possession of cocaine with intent to sell, possession of marijuana, and possession of ammunition by a convicted felon. Lundy filed a motion to sever the ammunition charge, and that motion was granted.1 Lundy's jury trial on the severed ammunition count began on February 3, 2016.
After the State rested, Lundy moved for a judgment of acquittal, arguing that the State had failed to establish (a) constructive possession of the ammunition and (b) live "ammunition" as defined in section 791.001(19), Florida Statutes (2014). The trial court denied the motion as to constructive possession, and reserved ruling as to the "ammunition" issue.
The jury could not reach a verdict, and the court declared a mistrial. Five days later, Lundy filed a timely, renewed motion for a judgment of acquittal pursuant to Florida Rule of Criminal Procedure 3.380(c). Lundy again argued both of the alleged deficiencies in the State's case (constructive possession and the evidence required to prove "ammunition"). The trial court then conducted a hearing on Lundy's renewed motion for a judgment of acquittal.
Thereafter, the trial court issued a written order determining that the State had failed to prove either constructive possession of the ammunition or the requisite factual elements to meet the statutory definition of "ammunition." The trial court announced the acquittal on the record and entered a written "Judgment of Acquittal." The State filed a timely notice of appeal.
"The State's right to appeal in a criminal case must be ‘expressly conferred by statute.’ " Exposito v. State, 891 So.2d 525, 527 (Fla. 2004) (quoting Ramos v. State, 505 So.2d 418, 421 (Fla. 1987) ). The State's statutory authority to appeal is set forth in sections 924.07 and 924.071, Florida Statutes (2016). State v. McMahon, 94 So.3d 468, 472 (Fla. 2012) ; see Fla. R. App. P. 9.140(c) (). The only mention of "judgment of acquittal" in the two statutes is subsection 924.07(1)(j), which provides that "[t]he state may appeal from ... [a] ruling granting a motion for judgment of acquittal after a jury verdict." § 924.07(1)(j) ; see also Fla. R. App. P. 9.140(c)(1)(E) ()
The State's right to appeal is limited, both in the statute and the rule, to post-verdict judgments of acquittal. § 924.07(1)(j) ; Fla. R. App. P. 9.140(c)(1)(E). This limitation is "crafted so as not to violate the state and federal constitutional prohibitions against placing a defendant in double jeopardy." State v. Stone, 42 So.3d 279, 281 (Fla. 4th DCA 2010).
The trial court order granting Lundy's renewed motion for a judgment of acquittal is not an order that the State may appeal. Section 924.07(1)(j) provides that the State may appeal a judgment of acquittal only "after a jury verdict." In Lundy's case, however, the trial court's ruling came after the jury was deadlocked; no verdict had been rendered. See State v. Fudge, 645 So.2d 23, 24 (Fla. 2d DCA 1994) (); see also Hudson v. State, 711 So.2d 244, 246 (Fla. 1st DCA 1998) ().
The State responds to these authorities by arguing that the trial court's order was, in substance, an order granting a motion to dismiss, which is appealable under section 924.07(1)(a). The State contends (1) that the trial court's discharge of the jury reverted the case back to its pretrial posture and (2) that the trial court's order did not meet the definition of "acquittal" because it was not a resolution of all the factual elements of the charged offense. We disagree. The trial court was authorized to rule on the timely, renewed motion for a judgment of acquittal under Rule 3.380(c) :
If the jury returns a verdict of guilty or is discharged without having returned a verdict, the defendant's motion may be made or renewed within 10 days after the reception of a verdict and the jury is discharged or such further time as the court may allow.
The trial court order under review can only be characterized as an order granting a motion for a judgment of acquittal prior to a jury verdict—a non-appealable order.
A trial court order granting a "motion for judgment of acquittal before a jury verdict is not one that the state may appeal under section 924.07." Stone, 42 So.3d at 284–85. In the federal courts, a similar rule governs; cf. United States v. Martin Linen Supply, 430 U.S. 564, 576, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) .
The State's argument relies on the fact that the trial court rescheduled a new trial before it formally...
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State v. Yero
...by the State; we have jurisdiction to review only those orders enumerated in section 924.07(1) and rule 9.140(c)(1). See State v. Lundy, 233 So. 3d 1252, 1253 (Fla. 3d DCA 2017). As the State all but concedes that the challenged order is not in that schedule, we grant Yero's motion to dismi......
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State v. Pickersgill
...was entered immediately after the State rested its case (i.e., before the jury even had a chance to deliberate)); State v. Lundy , 233 So. 3d 1252, 1253 (Fla. 3d DCA 2017) (order granting a renewed motion for judgment of acquittal was not appealable, as it was entered after the "jury could ......
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