        IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED



STATE OF FLORIDA,

            Appellant,

 v.                                                 Case Nos. 5D16-3214, 5D16-3215,
                                                              5D16-3217, 5D16-3218,
                                                              5D16-3219
MUNDEGERICK MITCHUM,

            Appellee.

________________________________/

Opinion filed September 1, 2017

Appeal from the Circuit Court
for Orange County,
Reginald K. Whitehead, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellant.

James S. Purdy, Public Defender, and Ali
Lee Hansen, Assistant Public Defender,
Daytona Beach, for Appellee.


PER CURIAM.

      The State of Florida appeals the trial court's order dismissing the violation of

probation charges against Mundegerick Mitchum in five separate cases. We reverse.
       Between March 13, 2001, and March 17, 2001, Mitchum participated in several

armed robberies and an armed carjacking.            In June 2002, Mitchum pleaded nolo

contendere to robbery with a firearm in four of the cases and carjacking with a firearm in

the remaining case.      Mitchum was sentenced to fifteen years' incarceration in the

Department of Corrections followed by fifteen years' probation. The probation orders in

all five cases required that Mitchum refrain from violating any law and stated that "[a]

conviction in a court of law shall not be necessary in order for such a violation to constitute

a violation of your probation."

       Since his release in July 2014, Mitchum has been arrested for operating a motor

vehicle without a valid driver's license and for three incidents of domestic violence. Each

of these arrests resulted in three separate sets of violation of probation charges in all of

the five cases. All of these violation of probation charges were later dismissed by the trial

court. However, the State has only appealed the dismissals arising from Mitchum's

August 7, 2016 arrest for domestic violence battery.1

       Before the hearing on the violations, the State nolle prossed the criminal charge

that arose out of Mitchum’s August 7, 2016 arrest for domestic violence. Consequently,

when the hearing took place, Mitchum's counsel moved, ore tenus, to dismiss the violation

of probation based on the State having dropped the criminal charge in the underlying

domestic battery case. The State objected, explaining that it wanted the opportunity to

try the violation, noting that this was Mitchum's third act of domestic violence since his




       1The violation of probation charges in the five cases contain the same allegations
and are based on the same facts.


                                              2
release from prison in 2014. The trial court ultimately granted Mitchum’s motion and

dismissed the violation of probation charges in all five cases.2

       The State argues that the trial court erred in granting the motion to dismiss because

its decision not to prosecute the criminal domestic battery charge does not preclude it

from pursuing a probation violation based on the same offense. We agree.

       When the State drops a criminal charge, this is not an acquittal and will not prevent

future prosecution if this happens before jeopardy attaches. Gonzales v. State, 780 So.

2d 266, 267 (Fla. 4th DCA 2001); State v. Jenkins, 762 So. 2d 535, 536 (Fla. 4th DCA

2000); Morris v. State, 727 So. 2d 975, 976 (Fla. 5th DCA 1999). In Jenkins, the Fourth

District explained this concept as follows:

              A nolle prosequi only means that the state is not prepared to
              go forward with the prosecution of the criminal charge. At
              most, it conveys that the state did not have sufficient evidence
              to meet its burden of proving guilt beyond a reasonable doubt.

762 So. 2d at 536. In contrast, the State only has to prove a violation of probation by a

preponderance of the evidence, which is a lesser standard than what is required to prove

the criminal charge. Id. (citing Miller v. State, 661 So. 2d 353, 354 (Fla. 4th DCA 1995)).

As such, the State may very well have sufficient evidence to meet this lesser burden. See

id.




       2  The trial court held two short hearings on these cases. After the first hearing, the
trial court dismissed the violation of probation charge in case number 2001-CF-005127-
A-O. Because the trial court did not have the records for the other four cases in front of
it at the time, it deferred acting on the violation of probation charges in those cases until
the following day. After the second hearing, the trial court dismissed the violations in case
numbers 2001-CF-010130-A-O, 2001-CF-008721-A-O, 2002-CF-000138-A-O, and
2002-CF-000139-A-O.



                                              3
       Because the State's decision to nolle pros the domestic battery charge does not

bar it from pursuing the violation of probation charges, the trial court's rulings on the

motion to dismiss were erroneous.3 See id. We, therefore, reverse the orders under

review and remand for further proceedings.4 See id.

       REVERSED AND REMANDED.


BERGER, LAMBERT and EDWARDS, JJ., concur.




       3  Although the trial court did not explain its reasoning for dismissing the violations
in detail, Mitchum's motion to dismiss was based on the State's decision not to proceed
with the prosecution of the criminal domestic battery charge.
       4 Mitchum's argument that the State did not preserve this issue for appeal is without
merit. The State objected to the dismissal of the probation violation charges at both
hearings and stated that it wanted the opportunity to bring the charges to trial even though
it had declined to prosecute the August 7, 2016 domestic battery case. This was enough,
in this particular case, to preserve the issue for appellate review. Mitchum's "tipsy
coachman" argument that the State failed to present a prima facie case is also without
merit because Mitchum's ore tenus motion to dismiss did not comply with Florida Rule of
Criminal Procedure 3.190(a), (c). See State v. Ochoa, 576 So. 2d 854, 859 (Fla. 3d DCA
1991) ("The court may not dismiss an information on the basis of a finding that the
evidence is insufficient to support it, in the absence of a sworn motion to dismiss under
Rule 3.190(c)(4) . . . ." (citing State v. Brooks, 388 So. 2d 1291, 1292 (Fla. 3d DCA
1980))); State v. Hernandez, 573 So. 2d 1037, 1037 (Fla. 3d DCA 1991) (citing State v.
Adderly, 411 So. 2d 981, 982 (Fla. 3d DCA 1982)).


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