W.B.S., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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W.B.S. appeals from an order adjudicating him guilty of felony battery after the trial court initially granted a motion for dismissal. The court held that the trial court violated W.B.S.'s double jeopardy rights by retracting a judgment of dismissal after jeopardy had attached, but affirmed the revocation of community control based on the same underlying facts.
The trial court violated W.B.S.'s double jeopardy rights by retracting the judgment of dismissal after jeopardy attached. However, the revocation of community control is affirmed because a violation of community control requires only proof by a preponderance of the evidence, not proof beyond a reasonable doubt, and the State presented sufficient evidence of the underlying conduct.
[1] Once jeopardy attaches in a nonjury trial, a dismissal of a charge without reservation of issues bars later reconsideration of that charge.
[2] A trial court's granting of a motion for a judgment of dismissal, after evidence has been presented, precludes subsequent adjudication of guilt on that charge.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In a nonjury trial, jeopardy attaches when the court begins to hear evidence.”
Establishes the legal standard for when jeopardy attaches in bench trials, supporting the double jeopardy claim
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Join FLexlaw to unlock all legal intelligenceW.B.S. was charged with felony battery. After a bench trial, the trial court granted the defense motion for judgment of dismissal, finding the State f…
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KELLY, Judge.
W.B.S. appeals from an order adjudicating him guilty of felony battery and revoking his community control. We agree with W.B.S.’s argument that the trial court’s granting of his motion for a judgment of dismissal barred later reconsideration of the felony battery charge. We reverse the adjudication of guilt as to that charge; however, we affirm the revocation of W.B.S.’s community control.
The State filed a petition alleging that W.B.S. had committed a delinquent act, felony battery, a third-degree felony, contrary to section 784.041, Florida Statutes (2000). Following the testimony at W.B.S.’s bench trial, the trial court granted defense counsel’s motion for a judgment of dismissal, finding that the State had failed to establish a prima facie case of felony battery. The case was bifurcated as to W.B.S.’s violation of community control.
Several weeks later, when the case was reconvened, W.B.S. was represented by a different lawyer. For reasons which are not apparent from the record, the trial court again heard argument relating to the felony battery charge. The court then found W.B.S. guilty of felony battery, adjudicated W.B.S. a delinquent child, and found him in wilful and substantial violation of his community control. The defense did not object to the court’s ruling on grounds that the charge had previously been dismissed.
In a nonjury trial, jeopardy attaches when the court begins to hear evidence. R.A.C. v. State, 736 So. 2d 718 (Fla. 2d DCA 1999). Here, after the court heard all the evidence, it dismissed the felony battery charge without reserving any issue for later consideration. Jeopardy had already attached when the court dismissed the charge, and therefore, retraction of the dismissal violated W.B.S.’s double jeopardy rights. See Caldwell v. State, 803 So. 2d 839 (Fla. 2d DCA 2001).
However, as the State argues, W.B.S. could still be found in violation of community control based on the facts establishing the felony battery. See Louis v. State, 797 So. 2d 1281 (Fla. 4th DCA 2001). A violation of community control needs to be proven only by a preponderance of the evidence, rather than beyond a reasonable doubt. Smith v. State, 788 So. 2d 1131 (Fla. 2d DCA 2001). Here, the State showed by a preponderance of the evidence that W.B.S. and two other boys attacked, beat, and kicked another boy. This evidence supported the finding that W.B.S. violated his community control due to a new law violation. Accordingly, we reverse the adjudication of guilt for felony battery and affirm the order finding W.B.S. in violation of community control.
Affirmed in part; reversed in part.
SALCINES and COVINGTON, JJ„ Concur.
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E.P. v. State, 901 So. 2d 193 (Fla. 4th DCA 2005)…iolation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So. 2d 314, 316 (Fla. 1st DCA 1996); see also W.B.S. v. State, 851 So. 2d 802 (Fla. 2d DCA 2003); Jones v. State, 730 So. 2d 349 (Fla. 4th DCA 1999). We review a court’s determination to revoke probation for an abuse of discretion. See Brown v. State, 455 So. 2d 635, 636 (Fla. 5th DCA 1984). The issue raised is whether the t…
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State v. M.C., 223 So. 3d 453 (Fla. 2d DCA 2017)…ppress evidence during trial, jeopardy has already attached and a defendant’s constitutional protections against being placed in double jeopardy are implicated.” (citing State v. Livingston, 681 So. 2d 762, 764 (Fla. 2d DCA 1996))); W.B.S. v. State, 851 So. 2d 802, 804 (Fla. 2d DCA 2003) (“In a nonjury trial, jeopardy attaches when the court begins to hear evidence.” (citing R.A.C. v. State, 736 So. 2d 718 (Fla. 2d DCA 1999))). This case is dismissed. SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.…
Authorities Cited
- Washington Louis v. State, 797 So. 2d 1281 (Fla. 4th DCA 2001)
- Caldwell v. State, 803 So. 2d 839 (Fla. 2d DCA 2001)
- R.A.C., Jr. v. State, 736 So. 2d 718 (Fla. 2d DCA 1999)
- Smith v. State, 788 So. 2d 1131 (Fla. 2d DCA 2001)