Hudson v. StateHudson v. State
On two grounds, David Homer Hudson appeals convictions for trafficking in and conspiracy to traffic in 200 or more but less than 400 grams of cocaine. When the defendant appealed the judgment against him, the state filed a notice of cross-appeal directed to the judgment of acquittal the trial court had earlier granted on charges that Mr. Hudson was guilty of offenses involving at least 400 grams of cocaine. We affirm the convictions and dismiss the state‘s cross-appeal.
He also argues that his convictions should be reversed because the jury learned that cocaine-contaminated water in a beaker weighed 251 grams. Both the conspiracy and the substantive offenses of which he was convicted required proof that 200 or more grams of cocaine were involved.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE JURY TO CONSIDER THE WEIGHT OF WATER TESTED AS EVIDENCE OF THE WEIGHT OF COC[AJ]NE TO CHARGE DEFENDANT WITH.
He contends the beaker, found in a sink, might well have contained water used to rinse the beaker, rather than a solution intended for distribution. See State v. Yu, 400 So.2d 762, 765 (Fla.1981) (“The legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of people than the same amount of undiluted cocaine and thus could pose a greater potential for harm to the public.“). We conclude this issue was not properly preserved for appeal.
The defense did object to introduction of a laboratory report stating that tests had demonstrated the presence of an unspecified amount of cocaine in the water. The report also recited the weight of the solution. Mr. Hudson‘s trial counsel requested that the report and any testimony predicated on the report be suppressed, asserting that the substance of the report was irrelevant.
But the presence of a beaker containing cocaine-bearing water and some indication of the quantity of the water were clearly relevant to prove the offenses charged. No motion for judgment of acquittal or request for limiting jury instructions was made on the ground that the weight of the water ought not be considered by the jury in determining the gravity of any offense. With the case in this posture, we affirm appellant‘s convictions without reaching the merits of his second point on appeal.
Cross-Appeal
After the jury had been sworn, but before it had rendered a verdict, the trial judge
The state seeks to appeal the granting of a motion for judgment of acquittal, which entails a determination that “the evidence is insufficient to warrant a conviction.”
In Florida, the state‘s right to appeal in a criminal case is a matter of legislative grace. See Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103, 1104 & n. 1 (Fla.1996) (noting that while a criminal defendant‘s “right of appeal was protected by our constitution, ... the state‘s right to appeal in criminal cases was governed by statute“); State v. MacLeod, 600 So.2d 1096 (Fla.1992); State v. Creighton, 469 So.2d 735, 737 (Fla.1985) (approving dismissal of state appeal on grounds “order granting a motion for judgment of acquittal is not among the rulings set out in the [then current] statute ... as appealable“). “The state‘s right to appeal is purely statutory. Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947); State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976).” State v. C.C., 476 So.2d 144, 145 (Fla.1985).
Only in the circumstances it specifies does section 924.07, Florida Statutes (1995), confer on the state the right to appeal in criminal cases. With respect to a judgment of acquittal, subsection (1)(j) provides that “[t]he state may appeal from ... [a] ruling granting a motion for judgment of acquittal after a jury verdict.”
Construing subsection (1)(j) strictly in keeping with its language obviates the need to decide state and federal constitutional questions that would arise if the statute were construed to allow an appeal in the present case. See Silver Rose Entertainment, Inc. v. Clay County, 646 So.2d 246, 248 (Fla. 1st DCA 1994) (noting “rule of decision which forbids reaching constitutional questions when cases can be disposed of on statutory grounds, we turn first to ... [the] statutory claim“). “[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 536, 53 L.Ed. 836 (1909).
In granting a motion for judgment of acquittal, the trial judge makes a factual determination “at the close of the evidence for the state or at the close of all the evidence in the cause ... [that] the evidence is insufficient to warrant a conviction.”
When a jury acquits, “there is no exception [to the prohibition against trying the same person again for the same offense] permitting retrial once the defendant has been acquitted, no matter how `egregiously erroneous,‘” Sanabria v. United States, 437 U.S. 54, 75, 98 S.Ct. 2170, 2184, 57 L.Ed.2d 43 (1978) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962)), the acquittal may have been. The same rule obtains when acquittal rests on a judicial determination, after jeopardy has attached and before a verdict is returned, that the evidence does not establish the fact of the crime.
Against this background, we have also to consider whether another provision of section 924.07, Florida Statutes (1995), confers authority on the state to take an appeal in the present case. In doing so, we look to decisions of sister courts allowing the state to “appeal a ruling granting a motion for judgment of acquittal after a jury verdict,” State v. Cochran, 667 So.2d 850, 851 (Fla. 2d DCA 1996), while refusing to allow the state to appeal where “there was no verdict.” State v. Fudge, 645 So.2d 23, 24 (Fla. 2d DCA 1994) (dismissing appeal where there was no verdict “because the jury deadlocked“). Subsection (1)(d) authorizes the state to take an appeal from
[a] ruling on a question of law when the defendant is convicted and appeals from the judgment. Once the state‘s cross-appeal is instituted, the appellate court shall review and rule upon the question raised by the state regardless of the disposition of the defendant‘s appeal.
Appellant‘s convictions are affirmed. The state‘s cross-appeal is dismissed.
BARFIELD, C.J., and KAHN, J., concur.