State v. Mundegerick Mitchum, 227 So. 3d 697

Mitchum committed multiple armed robberies and a carjacking in March 2001; pleaded nolo contendere in 2002 to robbery with a firearm (four cases) and carjacking with a firearm (one case). Sentenced to 15 years DOC and 15 years probation in each case.
Probation conditions in all five cases prohibited any law violations and stated a conviction was not required to prove a probation violation.
After release in July 2014, Mitchum was arrested several times, including an August 7, 2016 domestic battery arrest; the State later nolle prossed the underlying criminal domestic battery charge.
The State filed violation of probation (VOP) charges in all five original cases based on the same August 7, 2016 incident; at hearings Mitchum moved orally to dismiss the VOPs because the criminal charge was dropped.
The trial court granted Mitchum’s ore tenus motion and dismissed the VOPs in all five cases. The State appealed only the dismissals stemming from the August 7, 2016 arrest.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State’s nolle prosequi of the underlying criminal charge bars prosecution of a probation violation based on the same conduct	State: nolle pros does not bar VOP prosecution; jeopardy had not attached and VOP uses lower standard of proof	Mitchum: dismissal of criminal charge should preclude pursuing VOPs for same conduct	Reversed: nolle pros does not preclude VOP prosecution; State may pursue VOPs and prove violation by preponderance of evidence
Whether the trial court properly dismissed VOPs on an oral (ore tenus) motion to dismiss	State: trial court erred to grant dismissal where State objected and preserved issue	Mitchum: relied on State’s decision not to prosecute to seek dismissal	Reversed: dismissal was erroneous; matter remanded for VOP proceedings
Whether the State preserved appellate review of its objection to dismissal	State: timely objection at hearings preserved issue	Mitchum: argued State failed to preserve and failed to present prima facie case	Court: State preserved the issue; "tipsy coachman" argument fails because ore tenus dismissal did not comply with Rule 3.190

Gonzales v. State, 780 So. 2d 266 (Fla. 2001) (nolle prosequi is not an acquittal and does not bar future prosecution when jeopardy has not attached)
State v. Jenkins, 762 So. 2d 535 (Fla. 2000) (nolle pros indicates the State is not prepared to proceed; VOP burden is lower than criminal guilt beyond a reasonable doubt)
Morris v. State, 727 So. 2d 975 (Fla. 1999) (nolle pros does not preclude subsequent prosecution)
Miller v. State, 661 So. 2d 353 (Fla. 1995) (VOP is proven by a preponderance of the evidence)
State v. Ochoa, 576 So. 2d 854 (Fla. 3d DCA 1991) (court may not dismiss on insufficient evidence absent a sworn Rule 3.190(c) motion)
State v. Brooks, 388 So. 2d 1291 (Fla. 3d DCA 1980) (procedural requirements for dismissing an information)
State v. Hernandez, 573 So. 2d 1037 (Fla. 3d DCA 1991) (discussing Rule 3.190 dismissal procedure)
State v. Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982) (same)