final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-27350 Yvonne Colodny, Judge.
Jo Bondi, Attorney General, and Joanne Diez, Assistant
Attorney General, for appellant.
J. Martinez, Public Defender, and Billie Jan Goldstein,
Assistant Public Defender, for appellee.
ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
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
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. Lundy's jury trial on the severed
ammunition count began on February 3, 2016.
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
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 evidence required to prove
"ammunition"). The trial court then conducted a
hearing on Lundy's renewed motion for a judgment of
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.
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."