THE STATE OF FLORIDA, APPELLANT,
v.
ALEX EXPOSITO, APPELLEE
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The State appealed a trial court's order reducing a marijuana trafficking charge to possession with intent to sell, arguing the court lacked jurisdiction to hear such an appeal. The Third District Court of Appeal held that an order reducing a charge is analytically equivalent to an order dismissing a charge, and therefore the State has appellate jurisdiction under Florida Statutes § 924.07.
The State has appellate jurisdiction to appeal the order reducing the charge. An order reducing a charge is analytically an order dismissing the original charge, and § 924.07 authorizes the State to appeal orders dismissing an indictment or information or any count therein.
[1] An order reducing a criminal charge, despite its label, may be considered an order dismissing the charge for purposes of appellate jurisdiction.
[2] The State may appeal an order that effectively dismisses a charge, even if the order is styled as a reduction of the 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“Analytically, an order reducing a charge set forth in the information or indictment to some lesser-included charge is, despite its label, an order dismissing the charge in the information.”
Establishes the legal principle that allows the State to appeal charge reductions under the statute authorizing appeals of dismissed charges.
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Join FLexlaw to unlock all legal intelligenceExpósito was charged with possession with intent to sell marijuana and trafficking in marijuana. The State nol prossed the possession charge, and a ju…
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FLETCHER, Judge.
Alex Expósito was charged with one count of possession with intent to sell marijuana and one count of trafficking in marijuana. The State nol prossed the possession charge and the jury returned a verdict of guilty on the trafficking charge.
Prior to sentencing, Expósito filed a motion seeking either a new trial or a reduction of the trafficking charge. Expósito argued that the three year mandatory minimum of a sentence imposed for a trafficking conviction is illegal because it was enacted by Chapter 99-188, Laws of Florida, which statute the Second District Court of Appeal declared unconstitutional in Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002). In response to the motion the trial court stated:
“Fifth District and the Second District declared Chapter 99 unconstitutional. This previous case followed that case law and ruled it unconstitutional. The court is waiting for the Third District to rule. However, under the concept, I’m bound by the other appellate courts’ opinion. The Third District has not spoken on this issue. Based on that, the Defendant’s motion to reduce the charges from Trafficking in Cannabis to Possession with Intent, a third degree felony, is well taken. The motion is granted.”
R. at 78.
Expósito challenges the State’s right to this appeal. Expósito argues that this court has no jurisdiction as section 924.07, Florida Statutes (2000) does not authorize an appeal by the State from a reduction of charge. Expósito relies on State v. Richars, 792 So. 2d 570 (Fla. 4th DCA 2001). Therein, the Fourth District Court of Appeal held that section 924.07, Florida Statutes (2000) does not authorize an appeal from an order granting a motion to reduce a charge under rule 8.670, Florida Rules of Criminal Procedure.
We decline to follow the lead of Richars. In State v. Hankerson, 482 So. 2d 1386 (Fla. 3d DCA 1986), this court in dealing with a pretrial order reducing a charge stated: “Analytically, an order reducing a charge set forth in the information or indictment to some lesser-included charge is, despite its label, an order dismissing the charge in the information.” Hankerson at 1387. As section 924.07 authorizes the State to appeal orders dismissing an indictment or information or any count therein, we conclude that we have jurisdiction over the State’s appeal. Further, we reinstate the original charge and conviction 1 and certify conflict with Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So. 2d 302 (Fla.2002), and State v. Richars, 792 So. 2d 570 (Fla. 4th DCA 2001).
Reversed and remanded.
. In State v. Franklin, 836 So. 2d 1112 (Fla. 3d DCA 2003), we found Chapter 99-188, Laws of Florida, to be constitutional.
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Exposito v. State, 891 So. 2d 525 (Fla. 2004)…, Florida Statutes (2004), authorizes a State appeal from a post-trial order reducing a charge pursuant to Florida Rule of Criminal Procedure 3.620. The Third District Court of Appeal answered this question in the affirmative. See State v. Exposito, 854 So. 2d 674, 675 (Fla. 3d DCA 2003). However, the Third District certified conflict with the Fourth District Court of Appeal decision in State v. Richars, 792 So. 2d 570, 571 (Fla. 4th DCA 2001).1 Based on the plain language of the statute, we hold that section…
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State v. Velasquez, 879 So. 2d 1259 (Fla. 3d DCA 2004)…e issue of whether an appellate court has jurisdiction to review a trial court’s order reducing a criminal charge. See State v. Richars, 792 So. 2d 570 (Fla. 4th DCA 2001). We have ruled that we do have jurisdiction in such cases. State v. Exposito, 854 So. 2d 674 (Fla. 3d DCA 2003). We therefore grant the appellee’s motion for rehearing, withdraw our previous opinion of June 30, 2004, and issue this opinion in its stead. In so doing, we certify conflict with the Fourth District’s opinion in Richars. Jorge V…
Authorities Cited
- Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002)
- Gende v. Fla. Dep't of Child. & Families, 836 So. 2d 1112 (Fla. 3d DCA 2003)
- State v. Hankerson, 482 So. 2d 1386 (Fla. 3d DCA 1986)
- State v. Richars, 792 So. 2d 570 (Fla. 4th DCA 2001)