               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT

Z.E.,                            )
                                 )
           Appellant,            )
                                 )
v.                               )               Case No. 2D16-5234
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed April 6, 2018.

Appeal from the Circuit Court for
Hillsborough County; Frank A.
Gomez, Senior Judge.

Howard L. Dimmig, II, Public Defender,
and Clark E. Green, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa,
for Appellee.


ROTHSTEIN-YOUAKIM, Judge.

              This appeal originally came to us pursuant to Anders v. California, 386

U.S. 738 (1967). Upon our de novo review of the record and after ordering additional

briefing, we reverse the disposition order and remand for further proceedings.

              Thirteen-year-old Z.E. was charged in a delinquency petition with simple

battery on I.W., one of his classmates. At the adjudication hearing, I.W. testified that he
had been shoved from behind and that when he had turned around, Z.E. had been the

only person standing there. In addition, at some point previously, Z.E. had insulted I.W.

On direct examination, I.W. denied that he had hit Z.E. or had provoked him in any way;

on cross-examination, however, I.W. acknowledged that he and Z.E. had been

"engaged in some verbal back and forth, not very nice comments."

               Z.E. waived his right to testify. His attorney then moved for a judgment of

dismissal, arguing that I.W.'s demeanor while testifying "made it seem like he was not

taking this very seriously" and that "his testimony [was] not credible and that the State

[had] not proven their case beyond a reasonable doubt."

               The trial court found Z.E. guilty but withheld adjudication, placing him on

probation for an indefinite period not to exceed his nineteenth birthday and ordering him

to pay various court fees and costs, to perform twenty hours of community service, to

have an anger management evaluation, and to refrain from any contact with I.W. The

court stated: "It's not the strongest case I've ever heard, but the sad part about it is, it's

unrefuted. So he testified that he was pushed from behind and based on that testimony

unrefuted, I'm going to have to find him guilty." The court made no findings regarding

I.W.'s credibility.

               The trial court erred in concluding that it was constrained to find Z.E. guilty

because I.W.'s testimony was unrefuted. When sitting as the fact-finder in a criminal

case, the court is free to disbelieve the State's witness even if that witness's testimony

is unrefuted and even if that witness is the sole witness at the hearing or trial. See

Lewis v. State, 979 So. 2d 1197, 1200 (Fla. 4th DCA 2008) ("A trial court has the same

ability [as the jury] to determine the believability of a witness. The mere fact that the




                                             -2-
testimony appears 'uncontradicted' does not necessarily make it believable . . . .");

Maurer v. State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996) ("A judge acting as fact-

finder is not required to believe the testimony of police officers in a suppression hearing,

even when that is the only evidence presented; just as a jury may disbelieve evidence

presented by the state even if it is uncontradicted, so too the judge may disbelieve the

only evidence offered in a suppression hearing." (citing State v. Paul, 638 So. 2d 537,

539 (Fla. 5th DCA 1994))). In short, when sitting as a trier of fact, the trial court is in the

same position as a jury: if a jury is entitled to "disbelieve all or any part of the evidence

or the testimony of any witness," Fla. Std. Jury Instr. (Crim.) 3.9, then so too is the trial

court.

              The State does not quibble with this principle but argues, "The trial court

found the victim's testimony credible based on his recollection of events and their [sic]

veracity as a witness." As set forth above, however, the court made no such finding.

Instead, its comments evidence the reluctant conclusion that it had no choice but to

"believe" I.W.'s testimony because it was unrefuted. Because the court unquestionably

had a choice, we reverse the disposition order and remand for the court to make

credibility findings based on the evidence that has already been presented and for

disposition in light of those findings.

              Reversed; remanded for further proceedings.


SILBERMAN and MORRIS, JJ., concur.




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