       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.

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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.”)




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      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



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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


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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.




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