Third District Court of Appeal
State of Florida
Opinion filed December 13, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-801
Lower Tribunal No. 14-27350
________________
The State of Florida,
Appellant,
vs.
Major Lundy,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Yvonne
Colodny, Judge.
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.
SALTER, J.
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.
Procedural History
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
1 The cocaine and marijuana charges were ultimately nolle prossed by the State.
2
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.
Analysis
“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) (listing the
same types of orders the State may appeal in a criminal case). 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 may appeal an order . . . granting a motion for judgment
of acquittal after a jury verdict.”)
3
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) (“[B]ecause the jury deadlocked, there was no verdict . . . [and] [t]hus, no
appeal is authorized by section 924.07(1) [sic].”); see also Hudson v. State,
711 So.
2d 244, 246 (Fla. 1st DCA 1998) (“[Section 924.07(1)(j)] plainly contemplates
appeal from a judgment of acquittal only if the judgment of acquittal follows a
guilty verdict.”).
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
4
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 (1977) (“[A]lthough retrial is sometimes
permissible after a mistrial is declared but no verdict or judgment has been entered,
the verdict of acquittal foreclosed retrial and thus barred appellate review.”
(citation omitted)).
The State’s argument relies on the fact that the trial court rescheduled a new
trial before it formally declared a mistrial. The State contends that the prospect of
a new trial removes double jeopardy concerns because the case simply reverted to
its pretrial posture. We disagree. Lundy’s renewal of his motion for a judgment of
acquittal was timely and unaffected by the ministerial act of identifying a date for
retrial. The court’s judgment of acquittal, after considering all of the evidence
5
adduced at the trial, represents a resolution in Lundy’s favor of some or all of the
factual elements of the facts charged. See State v. Gaines,
770 So. 2d 1221, 1226
(Fla. 2000) (“[A] trial court’s actions constitute an acquittal for double jeopardy
purposes when ‘the ruling of the judge, whatever its label, actually represents a
resolution [in the defendant’s favor], correct or not, of some or all of the factual
elements of the offense charged.’” (quoting United States v. Scott,
437 U.S. 82, 97
(1978) (alteration in original)).
As the order is not within an enumerated category in the applicable
jurisdictional statutes, we dismiss the State’s appeal for lack of jurisdiction.
6
