FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Mark H. Hofstad,
L. Dimmig, II, Public Defender, and Matthew D. Bernstein,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Johnny T.
Salgado, Assistant Attorney General, Tampa, for Appellee.
challenges the order withholding adjudication of delinquency
but finding C.M. guilty of affray and placing her on
probation for one year. C.M. contends that the court erred in
denying her motion for judgment of dismissal of the affray
charge based on the State's failure to present evidence
rebutting her theory of self-defense. We agree and reverse
and remand for entry of judgment of dismissal.
was charged with disorderly conduct and affray as the result
of a physical altercation between C.M. and another juvenile,
S.J., on the juveniles' high school campus. At the
adjudicatory hearing, the State's only witness was the
high school's dean of students. The dean testified that
C.M. and S.J. were involved in a "disturbance"
outside of the school's cafeteria. The dean watched S.J.
walk to a group of students S.J. "normally hangs with,
" which included C.M. He saw S.J. and C.M. talking;
after he had looked away and continued to talk to another
administrator, he heard students yelling and turned around to
see C.M. and S.J. "punching each other" and
"striking each other." The dean yelled for the
students to "stop fighting"; however, C.M. and S.J.
only stopped fighting after they were physically separated.
Although the dean testified that the fight appeared mutual,
he also testified that he did not see who threw the first
punch or how the fight started.
the dean's testimony, the State rested and C.M. moved for
judgment of dismissal. C.M. argued that the State had not
presented a prima facie case of disorderly conduct or affray
because the dean had not seen how the fight started:
"[I]t could have been self-defense, . . . a full defense
of the case." The State responded that the testimony
established the altercation was mutual-there was no
indication that either student was the aggressor-and that
despite being told to disengage, the students continued to
fight. The court denied the motion for judgment of dismissal
as to both charges.
defense called T.J., a student who witnessed the fight. T.J.
testified that she, C.M., and another student were walking
out of the cafeteria when they were approached by S.J. S.J.
began "cussing" at the third student, "just
trying to fight, basically." According to T.J., S.J. was
aggressive. T.J. testified that after C.M. said
"nobody's going to fight, we aren't doing this
today, " the third student walked away and then S.J.
"started going at" C.M. and punched C.M. "in
the face just out of nowhere." T.J. stated that she did
not hear the dean command the students to stop fighting.
also testified. C.M. saw S.J. walking toward her and could
tell S.J. was angry. S.J. asked the third student if they
were going to fight, and C.M. said, "No, we can't be
doing this." C.M. testified that S.J. punched her in the
face and that she defended herself by punching S.J. C.M. also
testified that she did not hear the dean tell them to stop
C.M.'s testimony, the defense renewed its motion for
judgment of dismissal. Counsel argued that the undisputed
evidence established that C.M. had acted in self-defense and
that the State had failed to rebut the defense with any
evidence. In support of the argument, counsel pointed to two
cases discussing the applicability of self-defense to the
charge of disorderly conduct. The State responded that the
court should find T.J.'s and C.M.'s testimony less
credible than the dean's. The State represented that the
dean's testimony was that S.J. was not acting
aggressively and therefore T.J.'s and C.M.'s
testimony that S.J. approached them in an aggressive manner
should not be believed. The court indicated that it would
"reserve on that argument" and asked the parties
for closing argument.
closing argument, counsel reiterated that C.M. was acting in
self-defense and that the undisputed evidence established
that S.J. threw the first punch. Addressing the unresolved
motion for judgment of dismissal, the court stated:
"Based on the case law and the facts that are virtually
identical to what we have here today as to the charge of
disorderly conduct, which is the only thing that has been
argued to this point in time, I find the defendant not guilty
of disorderly conduct." However, the court found C.M.
guilty of affray and placed her on one year of probation.
subsequently filed a written renewed motion for judgment of
dismissal, arguing that she had moved for judgment of
dismissal as to both charges on the basis that the State had
failed to rebut her defense of self-defense. C.M. contended
that justified use of force is applicable in cases of affray
just as it is in cases of disorderly conduct. The renewed
motion was denied in an order containing no findings or
review the trial court's ruling on a motion for judgment
of dismissal de novo. G.T.J. v. State, 994 So.2d
1182, 1184 (Fla. 2d DCA 2008) (citing E.A.B. v.
State, 851 So.2d 308, 310 (Fla. 2d DCA 2003)). On our
review of the record, it appears that the trial court denied
the motion for judgment of dismissal not because it found
that self-defense is not a defense to the charge of affray
but because it did not realize that both affray and
disorderly conduct were the subject of the motion. The court
ruled: "Based on the case law and the facts that are
virtually identical to what we have here today as to the
charge of disorderly conduct, which is the only thing
that has been argued to this point in time, I find the
defendant not guilty of disorderly conduct." (Emphasis
added.) C.M.'s written motion for judgment of dismissal
established that C.M. also ...