ALBERT BOONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Albert Boone appeals his conviction for improper exhibition of a dangerous weapon. The court reverses the conviction, holding that the trial judge erred in reinstating a lesser-included offense for jury consideration after having granted a motion for judgment of acquittal on that count at the close of the state's case.
The trial court erred in reinstating the lesser-included offense for jury consideration after granting the motion for judgment of acquittal and moving forward with the defendant's case-in-chief. Once the trial court announced the acquittal on the record with no indication of ongoing consideration, the matter had progressed toward finality, and retraction was improper. The conviction for improper exhibition of a dangerous weapon is reversed.
[1] A trial court may not reinstate a charge for submission to the jury after granting a motion for judgment of acquittal, absent ongoing legal argument or indication that th…
[2] A trial court's oral pronouncement granting a motion for judgment of acquittal, without further indication of reconsideration, renders the matter final and precludes subs…
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Join FLexlaw to unlock all legal intelligence“On the Motion for a Judgment of Acquittal, the Motion is granted. I don't think there's sufficient evidence to make a jury question as to Count Two, so, I do enter a Judgment of Acquittal on Count Two.”
The trial court's definitive announcement of acquittal, made on the record with no indication of ongoing consideration.
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Join FLexlaw to unlock all legal intelligenceThe trial judge granted Boone's motion for judgment of acquittal on Count II (aggravated assault with a deadly weapon) at the close of the state's cas…
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PER CURIAM.
We reverse appellant’s conviction for one count of improper exhibition of a dangerous weapon.
The trial judge granted appellant’s motion for judgment of acquittal at the close of the state’s case on the crime charged in Count II of the information, aggravated assault with a deadly weapon. Appellant took the stand in his defense and rested. During the charge conference, at the state’s suggestion, the trial court revisited Count II and decided that the lesser included offense of improper exhibition of a dangerous weapon should be submitted to the jury.
The state relies on Francis v. State, 736 So. 2d 97 (Fla. 4th DCA 1999), and Simmons v. State, 790 So. 2d 1177 (Fla. 3d DCA 2001), to argue that the trial court did not err in reinstating the lesser included offense for Count II.
These cases are distinguishable. Both involved situations where discussions and oral argument on a motion for judgment of acquittal were still ongoing when the trial court initially granted the motion. See Francis, 736 So. 2d at 99; Simmons, 790 So. 2d at 1182. As this court observed in Francis,
[Djiscussions between the court and counsel for both sides regarding the motion were still ongoing up to and after the point the court granted the motion. At the conclusion of the day’s proceedings, it was clear the court was giving the prosecutor overnight to gather additional case law, and would continue the hearing the next day.
736 So. 2d at 99.
The record in this case does not indicate ongoing legal argument on the defense motion, nor the possibility of revisiting the issue in the future. The trial court announced on the record, “[o]n the Motion for a Judgment of Acquittal, the Motion is granted. I don’t think there’s sufficient evidence to make a jury question as to Count Two, so, I do enter a Judgment of Acquittal on Count Two.”
From that point, the trial moved to the defendant’s case-in-chief and the trial court gave no further consideration to Count II. “[Wlithout any indication [in the record] that the matter was still under consideration, [the case] had progressed toward finality beyond the point that would permit its retraction or correction.” Watson v. State, 410 So. 2d 207, 209 (Fla. 1st DCA 1982). Therefore, submitting the lesser included offense of improper exhibition of a dangerous weapon to the jury was error. See id.; Kelly v. State, 334 So. 2d 128, 128 (Fla. 2d DCA 1976) (holding that after trial court had granted motion for judgment of acquittal, it was error to reinstate the charge and submit it to the jury after the defendant had rested his case). The conviction for improper exhibition of a dangerous weapon is reversed.
We affirm appellant’s conviction for aggravated assault with a deadly weapon. The trial court clearly announced its finding that Boone was competent to stand trial. However, it entered no written order finding competency. See Emerson v. State, 294 So. 2d 721, 721 (Fla. 4th DCA 1974); Fla. R.Crim. P. 3.212(b) & (c)(7). We remand the case to the trial court for the entry of a written order. See Corbitt v. State, 744 So. 2d 1130, 1130 (Fla. 2d DCA 1999); White v. State, 548 So. 2d 765, 768 (Fla. 1st DCA 1989).
STONE, GROSS and HAZOURI, JJ., concur.
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Khadafy Kareem Mullens v. State, 197 So. 3d 16 (Fla. 2016)…64 (mem.) (Fla. 2d DCA 2014); Razuri v. State, 126 So. 3d 261, 261-62, h. 1 (mem.) (Fla. 3d DCA 2010); Molina v. State, 946 So. 2d 1103, 1105 n. 1 (Fla. 5th DCA 2006); White v. State, 548 So. 2d 765, 768 (Fla. 1st DCA 1989); see also Boone v. State, 805 So. 2d 1040, 1041 (Fla. 4th DCA 2002) (remanding for written order of competency, but not specifying a nunc pro tunc order). Additionally, this Court recently indicated that a trial court must delineate its findings regarding the competency of the defendant in…
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Molina v. State, 946 So. 2d 1103 (Fla. 5th DCA 2006)…be in writing. In the event the trial court orally finds the defendant competent to proceed, the appellate court may remand the case for entry of a written nunc pro tunc order. See Bailey v. State, 931 So. 2d 224 (Fla. 1st DCA 2006); Boone v. State, 805 So. 2d 1040 (Fla. 4th DCA 2002); Corbitt v. State, 744 So. 2d 1130 (Fla. 2d DCA 1999). . This court in Johnson explained: Rules 3.212(c)(6) and (7), Florida Rules of Criminal Procedure, provide that within 30 days of receiving notice that a defendant has rega…
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Tush-ee Lewis Hunter v. State, 174 So. 3d 1011 (Fla. 1st DCA 2015)…immediately followed by defense counsel’s stating he “would file a motion to ask for an insanity, presently, if the State was going to object”) cannot fairly be construed as a finding that Mr. Hunter was competent to stand trial. Cf. Boone v. State, 805 So. 2d 1040, 1041 (Fla. 4th DCA 2002) (remanding to the trial court for entry of a written order where the “trial court clearly announced its finding that Boone was competent to stand trial” but failed to enter a written order). Indeed, the trial court began se…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Francis v. State, 736 So. 2d 97 (Fla. 4th DCA 1999)
- Watson v. State, 410 So. 2d 207 (Fla. 1st DCA 1982)
- Simmons v. State, 790 So. 2d 1177 (Fla. 3d DCA 2001)
- Corbitt v. State, 744 So. 2d 1130 (Fla. 2d DCA 1999)
- White v. State, 548 So. 2d 765 (Fla. 1st DCA 1989)
- Emerson v. State, 294 So. 2d 721 (Fla. 4th DCA 1974)
- Kelly v. State, 334 So. 2d 128 (Fla. 2d DCA 1976)