Florida Criminal Law Opinions

CASEY L. TAYLOR, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-3300

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 28, 2007, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan L. Vaughn, Judge; L.T. Case No. 2004-00165-CF.

DISPOSITION: Affirmed.

COUNSEL: Carey Haughwout, Public Defender, and Frederick Arthur Mullins, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: TAYLOR, J. STONE, J., and COLBATH, JEFFREY J., Associate Judge, concur.

OPINION BY: TAYLOR

OPINION: TAYLOR, J.

Casey L. Taylor appeals an order revoking his probation for failure to pay restitution. He contends that the trial court abused its discretion in revoking his probation because it did not order him to pay a specific monthly amount towards restitution and the evidence did not establish his ability or willful refusal to pay restitution. We disagree and affirm.

Appellant was charged by information with grand theft-motor vehicle, driving without a valid license, and leaving the scene of an accident causing property damage. Pursuant to the plea agreement, the state nolle prossed the grand theft charge [*2] and appellant pled no contest to driving without a license and leaving the scene. Appellant was placed on six months probation on each count, to run consecutively, with a condition to pay approximately $ 20,800 in restitution. The court ordered that the restitution be paid in equal monthly installments during his probation. Appellant signed an offender financial obligation agreement requiring him to make a minimum monthly payment of $ 2,690.07.

At the hearing on appellant’s violation of probation, appellant’s probation officer testified that appellant made only four payments of $ 100 toward his restitution. Appellant testified that his net monthly income is $ 1,400. His monthly expenses include $ 400 for rent, $ 400 for food, $ 120 for lunch at work, $ 100-$ 200 for clothes and work boots, and $ 200 for his cell phone. Appellant explained that he needs a cell phone for work, as he works construction and must be able to call 911 or his company in case of emergency. He acknowledged, however, that he is not a supervisor and that other men on his crew also have cell phones.

After hearing appellant’s testimony concerning his income and expenses and making some recalculations based on [*3] the reasonableness of his claimed expenses, the trial court found that appellant had $ 150 a month unaccounted-for-income. The court determined that appellant’s $ 200 monthly payment for a cell phone was excessive and unnecessary, and a willful violation, in itself. The court also found that although appellant “may not be able to make all of his monthly [restitution] obligation, he certainly could pay more than what he’s doing.” Consequently, the trial court found appellant to be in willful and material violation of his probation, revoked his probation, and sentenced him to 120 days in the county jail, with credit for 50 days time served.

In arguing that the trial court abused its discretion in revoking his probation, appellant makes three claims: (1) that the court improperly delegated the duty of formulating a restitution payment schedule to his probation officer; (2) that he had until the end of his probation to pay the entire restitution obligation; and (3) that the evidence did not show his ability to pay and willful refusal to pay. The express terms of the probation order signed by the trial judge refute appellant’s first two claims. With respect to appellant’s third argument, [*4] the evidence was sufficient to satisfy the conscience of the trial court that appellant had the ability to pay more towards restitution, but willfully failed to do so.

A violation which triggers a revocation of probation must be willful and substantial, and a trial court’s determination concerning the willful and substantial nature of a violation must be supported by the greater weight of the evidence. See Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992). On appeal, the abuse of discretion standard of review applies to an order of probation revocation. Id.

In Spruill v. State, 643 So. 2d 1191, 1192 (Fla. 5th DCA 1994), the fifth district upheld the trial court’s order revoking the defendant’s probation for failure to make any payments towards his monthly restitution obligation. There, the defendant was ordered to pay $ 1,700,000 in restitution to his fraud victims at the rate of $ 17,000 per month. Although the defendant lacked the ability to make the full monthly payment ordered, the evidence was clear that he had the ability to pay $ 50 a month toward restitution. However, he stopped making the $ 50-monthly payments when he moved [*5] away from Florida. The fifth district held that the trial court properly concluded that the defendant did not make a good faith effort to meet his obligations to the best of his financial ability.

In Osta v. State, 880 So. 2d 804 (Fla. 5th DCA 2004), the fifth district affirmed the order revoking probation where the trial court found that the defendant could have paid much more towards his restitution than he did. There, the defendant was ordered to pay restitution of $ 62,529.96. He made only small payments and became delinquent in his payment plan by $ 24,000. Based upon evidence that the defendant had traveled extensively and maintained a group of “shell” companies, the fifth district affirmed the trial court’s finding that defendant willfully refused to pay restitution.

In this case, we similarly find no abuse of discretion in the trial court’s determination that, though appellant may have been unable to pay the full monthly amount ordered, he could have paid more than he did towards his restitution obligation. Accordingly, we affirm the trial court’s order revoking appellant’s probation.

Affirmed.

STONE, J., and COLBATH, JEFFREY J., Associate Judge, [*6] concur.

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WESLEY SANDERS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-2378

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 28, 2007, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 2003-506-CF.

DISPOSITION: Affirmed.

COUNSEL: Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: FARMER, J. STONE and MAY, JJ., concur.

OPINION BY: FARMER

OPINION: FARMER, J.

One of the two offenses charged was burglary with an assault and battery. On that charge the jury convicted on the lesser included offense of burglary of a dwelling. n1 By appeal defendant argues a lack of proof.

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n1 He was also charged and convicted of the crime of escape. The jury specifically found that there was no assault or battery. Each offense yielded a sentence of 15 years as a habitual felony offender and prison releasee offender.

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From trial evidence comes the [*2] following narrative. Wesley and Wendy had known each other since childhood. More recently they had been living together in Wendy’s second-floor apartment above a commercial establishment. He moved out after a quarrel. He still had a key to the apartment, where many of his possessions remained. Shortly after he moved out, he came to the building at 4:00 one morning accompanied by his sister. He did not know that Nadia, a new acquaintance, was staying overnight with Wendy.

Wendy heard him outside downstairs begging to let him talk to her. She yelled back that she did not want to talk to him or enter the apartment. She then heard him break the window on the downstairs entrance door and climb the stairs to the second-floor apartment.

The bedroom door is a thin, hollow interior door. Either he pushed it, or Wendy closed it before he could enter the bedroom. Either way, Wendy was struck in the face and arm by the door as it closed. He stood there and jiggled the door handle and banged and kicked the door while begging Wendy to let him talk to her. Investigators later noted a crack and black marks on the outside of the door. Wendy and Nadia both testified he could have broken the bedroom [*3] door down at any time while he banged on it, that his banging on the door stopped only when it was apparent the police were arriving. Wendy and Nadia heard his sister outside the door tell him that police were coming. Then they then heard him running back down the stairs and out the building.

At some point during the drama, Wendy made two 911 calls. During the first call, she told the operator, “I have an old boyfriend that just showed up at my house that does not need to be here.” She said he was “beating the door down.” On the second call, a male voice could be heard shouting profanities in the background. Most of the second call was an open line, with only a male voice audible. Wendy testified that she did not actually see Sanders at any time during the entire episode. She testified that he did not threaten the women. She made clear that Sanders did not intentionally touch her on the night in question. Both women testified they stayed in the bedroom while Sanders confronted law enforcement outside the residence.

The State argues that the offense intended by him during the break-in was criminal mischief. n2 One commits a criminal mischief by willfully and maliciously damaging the [*4] property of another in any way. § 806.13(1)(a), Fla. Stat. (2006). The offense requires that the actor have a specific intent to damage property. J.A. v. State, 684 So. 2d 264, 265 (Fla. 4th DCA 1996). We find evidence to support the offense. Testimony established that defendant already had a key to the building and apartment. Rather than use his key to gain entrance (in spite of her demand that he leave), he instead smashed the window and proceeded to bang threateningly on the bedroom door. A reasonable jury could have concluded that his entry without permission was for the purpose of committing the offense of criminal mischief inside to intimidate or force her into speaking to him.

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n2 The State argued to the trial judge that both assault and criminal mischief should be included in the instruction to the jury as the offense contemplated by defendant during the break-in. The jury found that no offense of assault was committed.

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Affirmed.

STONE and MAY, JJ., concur. [*5]

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ROGER DAWSON, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-1189

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 28, 2007, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan L. Vaughn, Judge; L.T. Case No. 04-68 CF.

COUNSEL: Gregory J. Morse of Morse & Morse, LLC, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: WARNER, J. STEVENSON, C.J., and TAYLOR, J., concur.

OPINION BY: WARNER

OPINION: WARNER, J.

In this appeal from his conviction for sale and delivery of cocaine within 1000 feet of a church and for possession of cocaine, the appellant claims that the court fundamentally erred in failing to sua sponte dismiss the information when the state could not supply the appellant with the address of the confidential informant involved in the drug transaction. The appellant never objected to the state’s failure to disclose the address of the informant nor offered evidence to show that the state’s inability to supply the address constituted bad faith. As the sanction of dismissal is an exercise of the trial court’s discretion and fact-dependent, we hold that no abuse of discretion [*2] occurred. We affirm his conviction. However, we reverse the appellant’s sentence, as he could not receive consecutive sentences for both the sale and possession of the same cocaine pursuant to Hale v. State, 630 So. 2d 521 (Fla. 1993).

Appellant, Roger Dawson, was arrested three months after he sold drugs to a confidential informant. A deputy sheriff accompanied the confidential informant when he set up a drug sale with Dawson. Two of the conversations between the informant and the two men involved in the transaction were captured on videotape from the deputy’s vehicle. When the actual exchange occurred, the confidential informant exited the vehicle, so the deputy could see but not hear the transaction.

Dawson moved for the disclosure of the name and address of the confidential informant. The state supplied Dawson with his name, but informed the court that the deputy had lost track of the informant. The detective had attempted to locate him to no avail. Because the state did not intend to call the informant as a witness, it made no further efforts to locate him. The court entered a stipulated order disclosing the informant’s name but not his address. The defense [*3] made no further objection to the failure to disclose the informant’s locational information.

At trial, the deputies involved in the sale testified, and the court admitted videotapes of the conversations between the informant and the men who approached the vehicle, including Dawson, whom the deputy identified as the man in the second videotape. Dawson objected to the statements on those tapes that were made by the informant. In the first conversation, in speaking to the first man who approached the vehicle, the informant said, “Tell Roger I need a quarter.” The court overruled Dawson’s objection to the statement. The deputy positively identified Dawson as the person involved in the transaction, and the state had Dawson stand by the screen during the playing of the second videotape to compare Dawson’s appearance to the person on the videotape. The jury convicted Dawson of all charges.

On appeal, Dawson claims that the court fundamentally erred in failing to dismiss the charges against him when the state failed to provide an address or location for the informant. He must claim fundamental error because he made no motion to dismiss the charges on this ground in the trial court.

The [*4] supreme court reiterated the limits of the use of the fundamental error concept most recently in Farina v. State, 937 So. 2d 612, 629 (Fla. 2006):

“Fundamental error” is the sole exception to the preservation requirement. Harrell, 894 So. 2d at 941. To be fundamental, an error must “reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). We have also defined it as “error which goes to the foundation of the case.” Ray v. State, 403 So. 2d 956, 960 (Fla. 1981) (quoting Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970)). We have cautioned appellate courts to “exercise their discretion concerning fundamental error ‘very guardedly.’” Id. “[F]undamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id.

The failure to disclose the address or means of contacting the confidential informant was not a [*5] fundamental error requiring the sua sponte dismissal of the charges. This court has previously held that the dismissal of an information is “an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists.” State v. Lowe, 398 So. 2d 962, 963 (Fla. 4th DCA 1981). In Simmons v. State, 887 So. 2d 1283, 1285 (Fla. 2004), our supreme court noted that courts are reluctant to impose the sanction of dismissal when the failure to produce an informant is the result of negligence, as opposed to willful conduct on the part of the state. See also State v. Carpenter, 899 So. 2d 1176, 1182 (Fla. 3d DCA 2005) (”Dismissal of an information is, however, an extreme sanction that should be used with caution, and only when a lesser sanction would not achieve the desired result . . . . Before a court can dismiss an information for a prosecutor’s violation of a discovery rule or order, the trial court must find that the prosecutor’s violation resulted in prejudice to the defendant.”) (emphasis in original).

In this case, the state supplied the name of the confidential informant but not his address, [*6] because the deputy had lost track of him about a month after the transaction took place. The defense never challenged this assertion or the efforts of the state to locate the informant. Thus, there is no showing of willfulness. Further, because the defense never really objected to the failure of the state to provide the address of the informant, and the trial court accepted the state’s explanation, the trial court did not demand that the state take other measures to find the informant. Without more, sua sponte dismissal on this record most likely would have been error. Lowe, 398 So. 2d at 963. Clearly, no fundamental error has occurred.

Dawson also complains that the informant’s statement, “Tell Roger I need a quarter,” recorded on the videotape, constituted inadmissible hearsay. However, the trial court correctly ruled that this statement was admissible as a verbal act. See Decile v. State, 516 So. 2d 1139 (Fla. 4th DCA 1987). Although Dawson also complains of a Confrontation Clause violation, he did not make that objection below. Therefore, it is not preserved. Mencos v. State, 909 So. 2d 349, 351 (Fla. 4th DCA 2005).

We do, [*7] however, reverse as to Dawson’s sentence. The court imposed a habitual offender sentence of forty years for possession of cocaine within 1000 feet of a church and five years for possession of cocaine to run consecutive to the habitual offender sentence. In Hale v. State, 630 So. 2d 521 (Fla. 1993), our supreme court held that statutes permitting an enhancement of the sentence for a crime beyond its statutory maximum, such as the habitual offender statutes, may not thereafter be further enhanced by permitting them to run consecutively rather than concurrently. In Fuller v. State, 867 So. 2d 469 (Fla. 5th DCA 2004), the court examined Hale’s holding in the context of a habitual offender sentence imposed together with a non-habitual offender sentence. The trial court had imposed the non-habitual offender sentence for one count in a criminal episode consecutive to the habitual offender sentence for another count. In reversing, the court said, “The whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive [*8] sentencing may not be used to further lengthen the overall sentence.” Id. at 470. See also Canavan v. State, 842 So. 2d 306 (Fla. 5th DCA 2003). In this case, where both charges arose out of possession and sale of the same cocaine, imposing the possession sentence consecutive to the enhanced habitual offender sentence was error.

We thus affirm appellant’s convictions but reverse his sentence with directions to modify the sentence to run the sentences for both charges concurrently.

STEVENSON, C.J., and TAYLOR, J., concur.

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CALVIN FELTON, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-1176

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 28, 2007, Decided

NOTICE: [*1] NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul Backman, Judge; L.T. Case No. 03-8403CF10A.

DISPOSITION: Reversed and remanded for a new trial.

COUNSEL: Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES: GROSS, J. WARNER and TAYLOR, JJ., concur.

OPINION BY: GROSS

OPINION: GROSS, J.

Calvin Felton was convicted of false imprisonment, attempted sexual battery, and strong arm robbery. We reverse for a new trial because the circuit court improperly restricted Felton’s cross-examination of the victim.

The victim testified that Felton attacked her in a field behind a Taco Bell. An independent witness heard the victim’s screams and called the police. Before the police arrived, Felton got off of the victim and walked away with her purse, saying that she “owe[d] him.”

Felton first argues that the trial court erred in denying his cause challenge to three potential jurors. A trial court’s decision on a cause [*2] challenge is “subject to an abuse of discretion review.” Castro v. State, 644 So. 2d 987, 990 (Fla. 1994); Carratelli v. State, 832 So. 2d 850, 854 (Fla. 4th DCA 2002). “Discretion is abused ‘only where no reasonable [person] would take the view adopted by the trial court.’” Singleton v. State, 783 So. 2d 970, 973 (Fla. 2001) (quoting Huff v. State, 569 So. 2d 1247, 1249 (Fla.1990)). Our review of the record indicates that the judge did not abuse his discretion in denying cause challenges for two of the jurors in question. As to the remaining juror, there was no reversible error because the judge gave Felton an additional peremptory challenge. See Jenkins v. State, 824 So. 2d 977, 981 (Fla. 4th DCA 2002) (indicating that preservation of an error concerning the denial of a cause challenge requires a request for an additional peremptory challenge and a denial of that request).

We agree with Felton that the trial court improperly precluded him from cross-examining the victim about the fact that she was “on methadone” at the time of the incident. At the hearing on the state’s motion in limine, the prosecutor [*3] told the judge that there was “no evidence” the victim “was under the influence of anything” on the day of the crime. However, at trial, the defense proffer established that the victim was on methadone when the crime occurred.

Cross-examination is the main way that a litigant tests the believability of a witness and the truth of her testimony. The right to cross-examination is the primary interest secured by the confrontation clause of the Sixth Amendment to the United States Constitution. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). A party may attack a witness’s credibility by “[s]howing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.” § 90.608(4), Fla. Stat. (2006). A witness’s drug use at the time of the crime may impact her “capacity or ability” to observe the events in question.

In Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989), the supreme court set forth the three situations where evidence of a witness’s drug use is admissible to impeach the witness at trial:

[E]vidence of drug use for the purpose [*4] of impeachment [is excluded] unless: (a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (c) it is expressly shown by other relevant evidence that the prior drug use affects the witness’s ability to observe, remember, and recount.

This case falls under rule (a) in Edwards, because the victim admitted to being on methadone at the time of the attack. In precluding the evidence, the trial court focused on the lack of expert testimony showing the effects of methadone on a person’s ability to perceive; however, expert testimony is not necessary when the witness used drugs “at or about the time of the incident which was the subject of the witness’s testimony.” Hammett v. State, 908 So. 2d 595, 597 (Fla. 2d DCA 2005).

Another basis for admitting the cross-examination about the victim’s methadone use is that the state opened the door to such testimony by portraying the victim in a misleading way on direct examination. On direct examination, the state painted a picture [*5] of innocent lovebirds who traveled to Florida for a family vacation; the victim testified that she came to Florida to be with her boyfriend and that she decided to move to Pompano Beach, the location of the Taco Bell, because she knew about the area from visiting her grandparents. In reality, the victim and her boyfriend were heroin addicts who moved to Florida to receive treatment at a methadone clinic in Pompano Beach. The proposed cross-examination was permissible to reveal the “whole story of a transaction only partly explained in direct examination.” Bozeman v. State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997).

We do not find this error to be harmless because, after reading the transcript of the trial, we cannot say “that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.1986).

Reversed and remanded for a new trial.

WARNER and TAYLOR, JJ., concur.

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ROGER ALLEN EICHELBERGER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-3630

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 28, 2007, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: Appeal from the Circuit Court for Pasco County; Kirby Sullivan, Senior Associate Judge. James Marion Moorman, Public Defender, and Jean-Jacques A. Darius, Assistant Public.

DISPOSITION: Affirmed in part, reversed in part, and remanded.

COUNSEL: Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

JUDGES: SILBERMAN, Judge. WHATLEY and NORTHCUTT, JJ., Concur.

OPINION BY: SILBERMAN

OPINION: SILBERMAN, Judge.

Roger Eichelberger appeals his convictions and sentences for three counts of aggravated stalking. We affirm without comment his challenges as to the trial court’s evidentiary rulings and the court’s instructions to the jury. However, because Eichelberger’s convictions for three separate counts of aggravated stalking violate the constitutional guarantees against double jeopardy, n1 we reverse two of the convictions and remand for entry of a corrected judgment and for resentencing.

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n1 U.S. Const. amend. V.; Art. I, § 9, Fla. Const.

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Eichelberger argues that his convictions for three separate counts of aggravated stalking violate double jeopardy principles because the convictions all arise from a single criminal episode. Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal. Marinelli v. State, 706 So. 2d 1374, 1375 n.1 (Fla. 2d DCA 1998).

The State charged Eichelberger with three counts of aggravated stalking pursuant to section 784.048(4), Florida Statutes (2002). In each count, the State alleged that between July 1, 2002, and October 16, 2002, Eichelberger “knowingly, willfully, maliciously, and repeatedly” contacted or attempted to contact the victim in violation of an injunction for protection against repeat violence, an injunction for protection against domestic violence, or other court-imposed prohibition of conduct. Each count alleged that Eichelberger used a different form of contact or attempted contact to stalk the victim. Count one alleged that he used the telephone, count two alleged that he used mail or written correspondence, and count three alleged that he came within five hundred feet of the [*3] victim’s residence.

Section 784.048(4) provides as follows:

Any person who, after an injunction for protection against repeat violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly follows or harasses another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 784.048(1)(a) defines the term “harass” as engaging “in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” Section 784.048(1)(b) defines the term “course of conduct” as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose,” excluding constitutionally protected activity.

This court has previously held that multiple convictions of misdemeanor stalking for actions occurring during the same time period violate double jeopardy principles. [*4] Marinelli, 706 So. 2d at 1375. In Marinelli, the State charged the defendant with misdemeanor stalking. We noted that “[i]nherent in the concept of stalking is that the actions comprise a ‘course of conduct,’ which is defined as ‘a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.’” Id. (quoting § 784.048(1)(b), Fla. Stat. (1993)). We concluded that the defendant’s convictions for two misdemeanor stalking offenses based on one course of conduct between January 2, 1994, and February 3, 1994, required identical elements of proof, including the identical time frame, and thus violated double jeopardy.

Here, the State argues that the multiple convictions are proper because Eichelberger engaged in three separate acts of aggravated stalking through the use of telephone messages, letters, and coming within five hundred feet of the victim’s residence. We cannot agree. Eichelberger’s acts, whether by telephone, letter, or approach within a specified distance, occurred during the three-and-a-half month time period alleged by the State in the information. The State did [*5] not present evidence of any break in Eichelberger’s course of conduct that would mark the end of one series of acts and the start of another, or the end of one form of contact and the start of another. Instead, the evidence established one course of conduct that was ongoing during the pertinent time period. As such, the proof supported a conviction for one count of aggravated stalking.

This case is distinguishable from State v. Johnson, 676 So. 2d 408 (Fla. 1996), in which the Florida Supreme Court determined that the defendant’s convictions for aggravated stalking and for contempt did not violate double jeopardy principles. Although both offenses were based upon the same course of conduct in which the defendant contacted his wife in violation of a domestic violence injunction, the court noted that the stalking and contempt charges contained different elements of proof. Id. at 411. That is not the case here, where the evidence did not establish different crimes with different elements of proof.

This case is also distinguishable from State v. Jones, 678 So. 2d 1336 (Fla. 5th DCA 1996). There, Jones was arrested and charged with aggravated [*6] stalking for conduct that allegedly occurred on April 30, 1995. While he was in jail, he allegedly again engaged in efforts to contact the victim during the period from May 1 to May 16, 1995. As a result, the State charged him in a second case with aggravated stalking.

Jones argued that because aggravated stalking is a continuing crime, he should only have been subject to a single prosecution. Id. at 1337-38. The court disagreed, noting that “while aggravated stalking requires repeated acts, such acts could conceivably constitute separate and distinct factual events which would support multiple prosecutions and convictions.” Id. at 1338. The court explained as follows:

[I]f an accused repeatedly follows or harasses the victim with the requisite intent he may be guilty of aggravated stalking. If, after prosecution for the offense, the accused again undertakes to follow or harass on a repeated basis the victim, again with the requisite intent, he has committed another aggravated stalking.

Id. The court noted that the informations charging Jones encompassed separate time frames. The court concluded that Jones’s arrest for the first [*7] crime “concluded the factual event which formed the basis for the arrest and began a separate and distinct factual event.” Id.; see also State v. Evans, 681 So. 2d 768, 769 (Fla. 5th DCA 1996) (reversing dismissal of aggravated stalking charge on double jeopardy grounds because the charging documents alleged conduct that occurred on different dates in two different counties).

Here, the State charged Eichelberger for an ongoing course of conduct that occurred during a single time period. Although the State alleged different means of contact during the same time period, it did not allege or establish the end of one course of conduct and the start of a new course of conduct. Accordingly, we affirm Eichelberger’s conviction for one count of aggravated stalking but reverse the other two convictions for the same crime. We remand for entry of a corrected judgment reflecting a single conviction for aggravated stalking.

As to Eichelberger’s sentence, the trial court sentenced him to the lowest permissible prison sentence calculated under a sentencing scoresheet that included points for the multiple convictions of aggravated stalking. Because the points for the multiple convictions [*8] cannot be included in computing the lowest permissible prison sentence, we reverse Eichelberger’s sentence and remand for resentencing using a corrected scoresheet.

Affirmed in part, reversed in part, and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.

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