STATE OF FLORIDA, APPELLANT,
v.
MUNDEGERICK MITCHUM, APPELLEE
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The trial court erred in dismissing violation of probation charges solely because the State nolle prossed the underlying criminal charge.
[1] A nolle prosequi of a criminal charge does not preclude the State from pursuing a violation of probation based on the same offense.
[2] The State is only required to prove a violation of probation by a preponderance of the evidence, a lesser standard than proving a criminal charge beyond a reasonable doub…
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Join FLexlaw to unlock all legal intelligenceMundegerick Mitchum pleaded guilty to robbery and carjacking charges and was placed on probation. After his release, he was arrested for driving witho…
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The State of Florida appeals the trial court’s, order dismissing the violation of probation charges against Mundegerick Mitchum in five separate cases. We reverse.
Between March 13, 2001, and March 17, 2001, Mitchum participated in several armed robberies and an armed carjacking. In June 2002, Mitchum pleaded nolo con-tendere to robbery with a firearm in four of the cases and carjacking with a firearm in the remaining case. Mitchum was sentenced to fifteen years’ incarceration in the Department of Corrections followed by fifteen years’ probation. The probation orders in all five cases required that Mitch-um refrain from violating any law and stated that “[a] conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.”
Since his release in July 2014, Mitchum has been arrested for operating a motor vehicle without a valid driver’s license and for three incidents of domestic violence. Each of these arrests resulted in three separate sets ■ of violation of probation charges in all of the five cases. All of these violation of probation charges were later dismissed by the trial court. However, the-State has only appealed the dismissals arising from Mitchum’s August 7, 2016 arrest for domestic violence battery.1
Before the hearing on the violations, the State nolle 'prossed' the criminal charge that arose out of Mitchum’s August 7,2016 arrest for domestic Violence. Consequently, when the' hearing took place, Mitchum’s counsel moved, ore tenus, to dismiss the violation of probation based on the State having dropped the criminal charge in the underlying doméstic battery case. The State objected, explaining that it wanted the opportunity to try the violation, noting that this was Mitchum’s third act of domestic violence since his release from prison in 2014. The trial court ultimately granted Mitchum’s motion and dismissed *699the violation of probation charges in all five cases.2
The State argues that the trial court erred in granting the motion to dismiss because its decision not to prosecute the criminal domestic battery charge does not preclude it from pursuing a probation violation based on the same offense. We agree.
When the State drops a criminal charge, this is not an acquittal and will not prevent future prosecution if this happens before jeopardy attaches. Gonzales v. State, 780 So.2d 266, 267 (Fla. 4th DCA 2001); State v. Jenkins, 762 So.2d 535, 536 (Fla. 4th DCA 2000); Morris v. State, 727 So.2d 975, 976 (Fla. 5th DCA 1999). In Jenkins, the Fourth District explained this concept as follows:
A nolle prosequi only means that the state is not prepared to go forwárd with the prosecution of the criminal charge. At most, it conveys that the state did not have sufficient evidence to meet its burden of proving guilt beyond a reasonable doubt.
762 So.2d at 536. In contrast, the State only has to prove a' violation of probation by a preponderance of the evidence, which is a lesser standard than what is required to prove the criminal charge. Id. (citing Miller v. State, 661 So.2d 353, 354 (Fla. 4th DCA 1995)). As such, the State may very well have sufficient evidence to' meet this lesser burden. See id.
Because the State’s decision to nolle pros the domestic battery charge does not bar it from pursuing the violation of probation charges, the trial court’s rulings on the motion to dismiss were erroneous.3 See id. We, therefore, reverse the orders under review and remand for further proceedings.4 See id.
REVERSED AND REMANDED. '
BERGER, LAMBERT and' EDWARDS, JJ., concur.
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Mandingo Boobyyaa v. State (Fla. 2d DCA 2021)…o. 3d 1045 (Fla. 2011); McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013); Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009); Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004); Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002); State v. Mitchum, 227 So. 3d 697 (Fla. 5th DCA 2017); State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000). VILLANTI, LUCAS, and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication.…
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Edwards v. State (Fla. 5th DCA 2024)
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Briggs v. Spurlock (M.D. Fla. 2023)…) irreparable injury 5 Under Florida law, the State’s nolle prosequi of the Columbia County charges does not preclude a Marion County judge from determining that a probation violation occurred based on the same conduct. See, e.g., State v. Mitchum, 227 So. 3d 697, 699 (Fla. 5th DCA 2017). would occur, or (8) there is no adequate alternative state forum where the constitutional issues can be raised.” Hughes v. Att’y Gen. of Fla., 377 F. 3d 1258, 1263 n.6 (11th Cir. 2004) (citing Younge…
Authorities Cited
- Morris v. State, 727 So. 2d 975 (Fla. 5th DCA 1999)
- State v. Zeb Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982)
- State v. Ochoa, 576 So. 2d 854 (Fla. 3d DCA 1991)
- Ovid Miller v. State, 661 So. 2d 353 (Fla. 4th DCA 1995)
- State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000)
- State v. Brooks, 388 So. 2d 1291 (Fla. 3d DCA 1980)
- Gonzales v. State, 780 So. 2d 266 (Fla. 4th DCA 2001)
- State v. Hernandez, 573 So. 2d 1037 (Fla. 3d DCA 1991)