       Third District Court of Appeal
                             State of Florida

                       Opinion filed November 2, 2016.
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                              No. 3D15-1849
                        Lower Tribunal No. 11-25865
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                          The State of Florida,
                                 Appellant,

                                     vs.

                              Darrell Smith,
                                  Appellee.

      An Appeal from the Circuit Court for Miami-Dade County, Diane V. Ward,
Judge.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellant.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special
Assistant Public Defender, and Oscar A. Quintero, Certified Legal Intern, for
appellee.

Before ROTHENBERG, LAGOA, and LOGUE, JJ.

     LOGUE, J.

                       ON MOTION FOR REHEARING
      We grant the State of Florida’s motion for rehearing, withdraw our opinion

dated July 27, 2016, and issue the following opinion in its stead.

      The State appeals a decision labeled “Order Declaring Mistrial.” Given the

trial court did not issue its decision until more than a month after the jury was

discharged and the verdict was rendered by being filed in the clerk’s records, the

decision is actually an order granting a new trial. See Keene Bros. Trucking v.

Pennell, 614 So. 2d 1083, 1085 (Fla. 1993) (“[W]hen the judge reserves ruling on a

mistrial motion until after the trial, or the motion is not made until after the

discharge of the jury, then the motion must be considered a motion for new trial.”).

Section 924.07(1)(b), Florida Statutes, therefore, provides the State authority to

appeal. See State ex rel. Sebers v. McNulty, 326 So. 2d 17, 18 (Fla. 1975)

(“Although the motion was denominated a motion for mistrial, correctly labeled at

the time it was made during the course of trial, it was in legal effect when ruled

upon a motion for new trial. As such, the order was appealable.”). State v. Fudge,

645 So. 2d 23 (Fla. 2d DCA 1994), which held that the State cannot appeal a

judgment of acquittal on a count of an indictment on which the jury deadlocked, is

inapposite because it did not involve setting aside a verdict after the verdict was

rendered and the jury was discharged.

      Turning to the merits, we hold that no abuse of discretion occurred in

granting the new trial. See generally State v. Williams, 478 So. 2d 412, 413 (Fla.



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3d DCA 1985) (“It is a well-established rule of law that the trial judge has wide

discretion in the matter of granting or denying motions for new trial and that an

appellate court will not overturn such a ruling unless some abuse of discretion is

shown.”).

      Finally, we note that the verdict form caused some confusion with the jury.

A simple solution to this problem may exist:

      First, trial courts should rely solely on the core or substantive offense
      in determining the order of lesser included offenses on a verdict form.
      Second, trial courts should provide an interrogatory separate from the
      verdict form for the core or substantive offenses for the jury to
      determine the existence of circumstances that can result in mandatory
      minimum sentences, sentence enhancements, or offense
      reclassifications.

Sanders v. State, 944 So. 2d 203, 207 (Fla. 2006) (Pariente, J., concurring). Judge

Emas cogently explained the benefits to this approach:

      I would urge the trial courts to follow the recommendation of Justice
      Pariente in her concurring opinion in Sanders, 944 So. 2d at 208-09,
      and provide juries with individual verdict forms that permit separate
      consideration of, and verdicts for, the core substantive offense and for
      the jury’s distinct determination of any fact necessary for
      reclassification or imposition of a mandatory minimum sentence. In
      doing so, we conserve our precious judicial resources, preserve the
      labor and lawful determinations of a unanimous jury, and thereby
      advance the proper administration of justice.

Staten v. State, Case No. 3D15-1130 (Fla. 3d DCA Sept. 21, 2016) (Emas, J.,

concurring). During the new trial, the trial court is at liberty to consider this

approach.



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Affirmed.

LAGOA, J., concurs in result only.




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