Florida Criminal Law Opinions

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ana I. Gardiner, Judge, L.T. Case No. 06-3902 CFA.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

We grant defendant’s motion for clarification and substitute this corrected opinion for the original opinion.

In this conviction for armed burglary, we conclude that the evidence does not support a finding that defendant was armed while committing the burglary and therefore reverse that conviction.¹

Defendant admitted breaking into an automobile dealership for the purpose of taking something of value. Inside he found a safe. The safe being locked and heavy, he pushed it outside the premises into his vehicle and drove away from the scene. Later he was able to force open the safe with a crowbar. Inside he found some blank checks used in the business, some motor vehicle titles, and a loaded gun. He threw the titles into a dumpster, cashed a check, and sold the gun for crack cocaine. Through the cashed check he was identified and arrested. He was tried for armed burglary because he stole the safe in which the gun was stored.

Section 810.02(2)(b) defines burglary as a felony punishable by life “if, in the course of committing the offense, the offender … becomes armed within the … structure … with … a dangerous weapon.” § 810.02(2)(b), Fla. Stat. (2007). Hardee v. State, 534 So.2d 706 (Fla. 1988), the

Page 2

court was called upon to determine whether this text required that the gun be loaded with bullets. The court explained:

“A person having possession of a gun during a burglary is subject to a minimum mandatory sentence under section 775.087 regardless of whether the gun was loaded. We do not believe that the legislature intended a different construction of section 810.02(2)(b) which enhances the crime of burglary when the defendant `is armed or arms himself’ with a gun.” [e.s., c.o.]

534 So.2d at 708. As the Florida Supreme Court noted in Hardee, section 775.087(4) defines possession of a firearm by a convicted felon as follows: “Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.” § 775.087(4), Fla. Stat. (2007). Hardee holds that the legislature intended the same construction for the armed burglary statute and the felony possession of a firearm statute. Giving the two provisions this common meaning of “possession” we conclude that it is necessary for the State to offer evidence “demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.”

It is now established in Florida law that felony crimes of possession of forbidden substances or things require proof of guilty knowledge. See Washington v. State, 813 So.2d 59 (Fla. 2002) (knowledge of the illicit nature of a substance is an element of the crime of possession even though this element is not explicitly stated in the standard jury instructions); Scott v. State, 808 So.2d 166 (Fla. 2002) (State has the burden in prosecution for possession of controlled substance of proving the defendant’s possession was knowing); Chicone v. State, 684 So.2d 736 (Fla. 1996) (holding that existence of mens rea is the rule rather than an exception to the principles of Florida criminal jurisprudence; guilty knowledge is implicit in the concept of possession as provided in statutes prohibiting possession of controlled substance); Reynolds v. State, 111 So. 285 (Fla. 1926) (holding that crime of possession of liquor required “conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession”). The offense of arming oneself during a burglary means that the offender equipped himself with a firearm. To equip oneself with something is to possess it. Nothing in section 810.02(2)(b) suggests that the legislature meant to dispense with the presumptive element of knowledge.

Page 3

No evidence indicates that defendant became aware of the presence of the gun on the premises where the burglary was committed. No evidence demonstrates that defendant knew he “had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.” In fact, the only evidence about the gun is from defendant’s recorded confession. In that evidence, he said he pushed the safe into his vehicle and drove it away, at which point the burglary was complete. The State offered no evidence that the safe was opened at the scene of the burglary.

Because the evidence does not demonstrate that defendant became armed during the burglary, it follows that his motion for judgment of acquittal on the armed burglary charge should have been granted. On remand, the trial court shall reduce the conviction for armed burglary to burglary of a structure.

Reversed.

WARNER, J., and CONNER, BURTON C., Associate Judge, concur.

Final upon disposition; no further motion for rehearing will be entertained.

—————

Notes:

—————

Share This

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Robert O. Collins, Judge, L.T. Case No. 02-4154 JR11A.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant Aaron Powell timely appeals his involuntary commitment pursuant to the Sexually Violent Predator Act. Powell argues that the trial court erred in denying his motions for mistrial and new trial based on the state’s allegedly improper closing argument.

During closing argument, the state argued that Powell had no job skills and no support system, as his mother “didn’t bother to show up for the trial.” Defense counsel objected, stating it was improper argument. The trial court sustained the objection. The state also argued that Powell’s low IQ was not a factor to be considered in assessing his risk to reoffend, but suggested that his IQ “makes him that much more scarier to the children in this community.” Defense counsel objected, to which the trial court responded, “It’s closing argument, it’s not evidence, I explained that to them.” The state went on to argue before the jury that Dr. Shadle, the defense’s expert witness at trial, had never testified for the state and works only for defense attorneys. The state argued:

Everything, one hundred percent of what he does in this arena is for the defense, everything he does is for the defense. Let that color how you view his testimony… He has no better idea except to come in here and testify for the person who’s paying him —

Defense counsel objected, and the trial court overruled the objection, stating “It’s closing argument, it’s not evidence.”

Page 2

Furthermore, the state argued that Powell met the criteria for involuntary commitment. The state claimed the actuarial science, as brought out by the state’s expert witness, showed that Powell had a 52% chance to recidivate within the next 15 years. The following exchange then occurred:

STATE: … If you hesitate at all, 52% chance of general recidivating, but the kid he recidivates with it’s 100% chance. If you hesitate at all, you’re putting every child he comes in contact with at risk.

DEFENSE COUNSEL: Objection, Your Honor, improper argument.

THE COURT: Overruled.

DEFENSE COUNSEL: May I make a motion, Your Honor? I would like to reserve—

Defense counsel agreed to let the state conclude its closing argument before making a motion for mistrial.

Defense counsel’s motion for mistrial was denied without any reasoning, but the trial court did state, “We’ll come back. You can have as much time. I told you, the both of you can have as much time as you need as long as you finish by next Friday.” Powell filed a motion for new trial, which was also denied by the trial court.

Wide latitude is permitted in arguing to a jury. Moore v. State, 701 So. 2d 545, 551 (Fla. 1997) (citing Breedlove v. State, 413 So. 2d 1, 8 (Fla.1982)). It is within the judge’s discretion to control the comments made to a jury, and appellate courts will not interfere unless an abuse of discretion is shown. Occhicone v. State, 570 So. 2d 902, 904 (Fla.1990); Breedlove, 413 So.2d at 8. We are to look at the closing argument as a whole to determine whether that discretion was abused. Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007).

We note the following improper arguments made by the state: (1) Powell’s low IQ “makes him that much more scarier to the children in this community,” (2) Powell’s mother “didn’t bother to show up for the trial,” and (3) “If you hesitate at all, 52% chance of general recidivating, but the kid he recidivates with it’s 100% chance. If you hesitate at all, you’re putting every child he comes in contact with at risk.” We find that

Page 3

the cumulative effect of these improper closing argument remarks entitles Powell to a new trial.

We also note that after defense counsel objected to some of the state’s arguments, the trial court did not specifically sustain or overrule the objection, stating in one instance that the argument was “closing argument, it’s not evidence, I explained that to them.” For adequate appellate review, it is necessary that trial courts make specific rulings to objections raised.

Reversed.

FARMER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing

Share This

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Charles E. Burton, Judge, L.T. Case No. 04-2105 CFA02.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.

SHAHOOD, C.J.

Appellant, Scott Alfred Strohm, was charged by amended information with two counts of capital sexual battery against his daughter, T.S. The State nolle prossed count II before trial. The offense in count I was alleged to have occurred between 1990 and 1991.

Prior to trial, the State filed an Amended Notice of Intent to Offer Williams¹ Rule Evidence, seeking to introduce a conviction of lewd or lascivious molestation on April 11, 2005 and a conviction of rape in 1974. A pretrial hearing was held and the Williams Rule witnesses testified. After the hearing, the trial court decided to allow into evidence the testimony of the victim of the 1973 rape, but deny the testimony of the other Williams Rule witnesses.

At trial, T.S., appellant’s daughter born in 1983, testified. She testified that between August 1990 and May 1991, appellant sexually abused her on almost a daily basis.

The victim of the 1973 rape testified that in Iowa appellant raped her when she was twelve years old. The victim did not know the appellant.

The jury returned a verdict of guilty as charged on count I capital sexual battery in this case. Appellant raises five issues on appeal, four of which we hold to be without merit and affirm without discussion. As his second issue, which forms the basis of our reversal, appellant urges the

Page 2

trial court abused its discretion in admitting collateral crime evidence in that the 1973 rape was dissimilar and remote in time to the crime for which he was currently on trial. We agree.

McLean v. State, 934 So. 2d 1248 (Fla. 2006), the Florida Supreme Court stated:

To guide the trial courts in deciding whether to admit evidence of prior acts of child molestation when it is offered to corroborate the victim’s testimony, we discuss the steps that the trial courts should take.

Id. at 1262. The court further stated:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Id.

The 1973 rape for which appellant was convicted in 1974 was on a twelve-year-old who testified that she did not know appellant. The capital sexual battery in this case was on appellant’s daughter and occurred between August 1990 and May 1991 when the victim was eight years old.

In addition, there were substantial other dissimilarities in the crimes. In the 1973 rape the victim was vaginally penetrated while the crime in the instant case consisted of another form of sexual abuse.

The 1973 rape was remote in time to the capital sexual battery charge in this case, seventeen years prior. The 1973 rape was a one-time occurrence on a stranger to the appellant. In this case the sexual battery was on appellant’s daughter over a several month period. In this case there was no evidence of “the presence or lack of intervening circumstances.” McLean, 934 So. 2d at 1262.

Page 3

We conclude that it was error to admit the testimony of the 1973 rape victim. We, accordingly, reverse and remand for a new trial.

Reversed and Remanded For New Trial.

HAZOURI and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing

—————

Notes:

—————

Share This

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, William Thomas, Judge, Lower Tribunal Nos. 00-2178; 98-26513

Hugo Cimadevilla, in proper person.

Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.

Before COPE, GREEN, and RAMIREZ, JJ.

PER CURIAM.

Hugo Cimadevilla appeals an order denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Page 2

Cimadevilla was charged by information on September 9, 1998, with armed burglary and resisting arrest without violence in Miami-Dade County, Eleventh Judicial Circuit state court. He pled guilty and was sentenced to two years probation. Subsequently, he was charged three times by way of violation of probation affidavits leading to new findings of guilty or pleas. He was still on probation on June 9, 2005, when Drug Enforcement Administration agents and/or members of the Florida Department of Law Enforcement searched the defendant’s residence. As a result, Cimadevilla was charged with possession of over 500 grams of cocaine and false identification papers. Two days later, an amended violation of probation affidavit was filed regarding, among other probation violations, the defendant’s cocaine possession.

On August 4, 2005, Cimadevilla pled guilty to the violation of his probation and was sentenced to forty months’ incarceration and three years’ probation. At the time he entered his plea to the state probation violation, the federal prosecution against the defendant had not been initiated. However, in September 2005, approximately one month after the state court plea, Cimadevilla was indicted in federal court for the cocaine and false papers that were found in his home on June 9, 2005. The same attorney represented Cimadevilla in both the state court and federal court cases. On or about August 23, 2006, Cimadevilla entered a guilty plea to the federal charge of possession with intent to distribute 500 grams or more

Page 3

of cocaine and was sentenced to 220 months in prison to be served consecutively to the time he received in the state court case.

Cimadevilla filed a “Motion to Vacate Judgment and Conviction or in the Alternative to Modify Sentence” pursuant to Florida Rule of Criminal Procedure 3.850, where he claimed that during his sentence colloquy, the court failed to provide notice of the consequences in the state court case regarding the possibility of the federal government pursuing charges against him and that any sentence would run consecutively. Cimadevilla also claimed that his counsel was ineffective for failing to advise him of the direct consequences of his guilty plea.

The trial court denied his motion, stating, “[n]either the Court nor the defendant’s attorney has an affirmative duty to advise the defendant regarding future sentence enhancements because such issues are collateral and a direct consequence of a plea,” and citing Major v. State, 814 So. 2d 424 (Fla. 2002). He then filed this appeal.

Cimadevilla’s sole argument on appeal is that the trial court erred in denying his rule 3.850 motion without conducting an evidentiary hearing or attaching portions of the record that conclusively refuted his claim. To uphold the trial court’s summary denial of claims raised in a rule 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. First, with respect to Cimadevilla’s claim that the trial court should have advised him that if the federal

Page 4

authorities filed charges, he could receive a consecutive federal sentence, this claim is legally invalid, and was properly denied by the trial court. See Major, 814 So. 2d at 431.

We also find his second claim to be facially insufficient. Cimadevilla alleges that he received ineffective assistance of trial counsel because his attorney failed to advise him of the possible consequences in federal court of having entered a plea in state court. However, “failure to advise” is not a basis for postconviction relief. Ey v. State, 33 Fla. L. Weekly S144 (Fla. Feb. 28, 2008); Major, 814 So. 2d at 430-31. Accordingly, we affirm the trial court’s summary denial of defendant’s rule 3.850 claim.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Share This

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jorge Labarga, Judge; L.T. Case No. 05-6505 CFA02.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant Michael Hosang timely appeals convictions of attempted robbery with a firearm and burglary while armed with a firearm. He argues that the trial court erred in (1) denying his motions for mistrial and new trial based on the state’s improper remarks during closing argument, and (2) denying his motion for new trial where the verdict form was flawed and the jury instructions were confusing. We reverse on both grounds.

This case grew out of a home invasion robbery. During closing argument, defense counsel objected to the state’s argument:

THE STATE: The defense tried to make a big deal about this defendant having tattoos on his hand and none of the witnesses noticing. Two important things about that that you need to understand. First of all, if someone is holding a gun to someone’s head, are you going to be focused on the tattoos or on the barrel of the gun. And Alex and Gail Rybak told you they were focused on the barrel of the gun. Secondly, if you notice what was mysteriously left out of the testimony of this defendant, when did he get those tattoos? This is 18 months later. That was never brought out. You wonder why was that not brought out? And I’ll tell you why. Because he got those after. He got them after, ladies and gentleman.

DEFENSE COUNSEL: Objection, facts not in evidence.

Page 2

THE COURT: The jury will recall what the evidence was in the case.

Defense counsel moved for mistrial, arguing that the state’s comments about Hosang’s tattoos could lead the jury to infer that the state had knowledge of when Hosang received the tattoos. The trial court denied the motion, suggesting that “whatever happened is one of those things that happens during closing arguments, and I’m sure the jury heard the evidence and there was no evidence presented that he got those tattoos afterward. . . .”

Wide latitude is permitted in arguing to a jury. Moore v. State, 701 So. 2d 545, 551 (Fla. 1997) (citing Breedlove v. State, 413 So. 2d 1, 8 (Fla.1982)). But attorneys must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998) (citing Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993)).

We hold that the state’s remarks in closing argument were improper. See Spoor v. State, 975 So. 2d 1233 (Fla. 4th DCA 2008); Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997). As this was a contested identification case, the error was not harmless.

In addition, Hosang argues that the jury instructions and verdict form were not clear as to when Hosang was required to have possessed a firearm. He claims this allowed the jury to find that Hosang possessed a firearm at some time other than during the commission of the attempted robbery or burglary, especially when there was evidence that Hosang possessed a firearm the day after the offenses.

As we are reversing on the first ground, we additionally reverse on this ground and note that the trial court should explicitly set out everything on the verdict form, including the reference to Hosang possessing the firearm during the commission or attempt to commit the robbery or burglary.

Reversed and remanded for a new trial.

WARNER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing

Share This