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State v. Lundy

Florida Court of Appeals, Third District

December 13, 2017

The State of Florida, Appellant,
v.
Major Lundy, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-27350 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 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." ยง ...


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