Florida Criminal Law Opinions

JAMIE VALENTIN, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-1785

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 27, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Larry Schack, Judge; L.T. Case No. 432006CF001530A.

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

Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.

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

OPINION BY:   WARNER

OPINION  

WARNER, J.

Appellant was convicted for possession of cocaine with intent to sell within one thousand feet of a publicly owned park in violation of section 893.13(1)(c), Florida Statutes (2006). He appeals, claiming that the court erred in denying his motion for judgment of acquittal, because the state failed to prove that his possession of cocaine was with an intent to sell. We reverse, concluding that the state’s evidence failed to prove an intent to sell.

Sergeant Curry of the Martin County Sheriff’s Department testified that he was patrolling the area surrounding Lamar Howard Park, a public park. As he patrolled the park, he observed Valentin walk towards some bushes, drop a white object into the bushes, and proceed to the park playground. Sergeant Curry retrieved the object–a  [*2]  clear ziplock in which several smaller bags were present, each containing a white powdery substance. There were seventeen smaller bags in the larger bag. Suspecting drugs, Sergeant Curry arrested Valentin. The substance in the bags tested positive for cocaine.

At trial, Sergeant Curry testified to his extensive experience with street level drug sales. He explained that based on his education, training, and experience regarding the manner in which cocaine is packaged for sale on the streets, the drugs found in the bushes were packaged for sale to consumers. He estimated that the amount of drugs found would sell for approximately $ 340 total. When asked on cross-examination whether the quantity and packaging were consistent with personal use, Sergeant Curry admitted, “It’s possible, yes.”

After the close of the state’s case, defense counsel moved for a judgment of acquittal, contending that the state had failed to present any evidence of an intent to sell. The trial court denied the motion. Valentin testified and denied that he was the individual Sergeant Curry saw. The jury, however, convicted Valentin of possession with intent to sell within one thousand feet of a park. The court adjudicated  [*3]  and sentenced Valentin, and he appeals. We find that the issue was properly preserved by the defense motion at trial. We review the sufficiency of the evidence to support the verdict de novo. Sigler v. State, 805 So. 2d 32, 34 (Fla. 4th DCA 2001).

The sole evidence presented by the state consisted of Sergeant Curry’s testimony that he saw Valentin drop the baggie, containing seventeen smaller baggies of cocaine, in a bush. He did not see Valentin talk to anyone or do anything to suggest an intent to sell in the park. Not only was the evidence insufficient to show an intent to sell generally, nothing would show that Valentin had an intent to sell within the park as required by the statute. § 893.13(1)(c), Fla. Stat. (”[I]t is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell . . . a controlled substance . . . in, on, or within 1,000 feet of real property comprising a state, county, or municipal park, a community center, or a publicly owned recreational facility.”) (emphasis supplied).

The quantity or packaging of drugs found in a defendant’s possession may indicate an intent to sell. See Lesane v. State, 895 So. 2d 1231 (Fla. 4th DCA 2005); Sampson v. State, 863 So. 2d 404 (Fla. 4th DCA 2003);  [*4]  Glenn v. State, 824 So. 2d 1046 (Fla. 4th DCA 2002); McCullough v. State, 541 So. 2d 720 (Fla. 4th DCA 1989). In McCullough, this court discussed the “type of circumstantial proof [] necessary to prove intent to sell.” 541 So. 2d at 721. For example, “the amount and quantity of drugs possessed by an individual may be circumstantial evidence of his intent to sell where such amount is inconsistent with personal use . . . .” Id. (emphasis supplied). There, the defendant was arrested in possession of fifteen cocaine rocks, which the testimony showed could be used by one person within one day. Therefore, the quantity of drugs did not show possession of drugs with intent to sell.

Discovering individually packaged narcotics does not automatically establish intent to sell. In Jackson v. State, when the defendant was arrested for fleeing a traffic stop, the police officer who conducted a pat down discovered $ 400 and cocaine which “weighed five grams and was packaged in six ring baggies contained within a larger baggie.” 818 So. 2d 539, 541 (Fla. 2d DCA 2002). The court held that the “quantity, even as packaged, was not so large as to imply an intent to sell without other evidence,” as it “was  [*5]  equally plausible that Jackson had purchased the six baggies of cocaine for his personal use.” Id. See also Nelson v. State, 707 So. 2d 405, 406 (Fla. 5th DCA 1998) (six packages which each contained a piece of cocaine did not establish intent to sell); D.R.C. v. State, 670 So. 2d 1183 (Fla. 5th DCA 1996) (evidence that officers observed the accused discard twenty-three separate, unwrapped rocks of cocaine was insufficient to prove possession with intent to sell); Williams v. State, 569 So. 2d 1376, 1377 (Fla. 2d DCA 1990) (evidence consisting of ten pieces of cocaine, marijuana rolling paper, $ 72, and a weapon was not sufficient to prove intent to sell); C.L.L. v. State, 566 So. 2d 878 (Fla. 3d DCA 1990) (evidence of ten pieces of cocaine in plastic baggies was insufficient to show intent to sell).

In this case, Valentin possessed seventeen individual baggies with 8.3 grams of cocaine in them, which included the weight of the baggies. Although Sergeant Curry testified that this was consistent with an intent to sell, he also admitted that it could be for personal use. See D.R.C., 670 So. 2d at 1185 (”Since the testimony of the officer was consistent with D.R.C. being a user as well  [*6]  as a seller, the circumstances relied upon did not lead to the one conclusion that D.R.C. was guilty of possession with intent to sell cocaine.”). See also C.L.L., 566 So. 2d at 878 (finding no intent to sell because the “officer did not testify that the quantity and packaging were indicative of an intent to sell, as opposed to holding the contraband for personal use”). Sergeant Curry did not find any money or drug paraphernalia on Valentin, and there are no other facts which would suggest an intent to sell.

The state presented circumstantial evidence as consistent with personal possession as with an intent to sell. It presented no evidence showing an intent to sell within the park. Therefore, the court erred in denying the motion for judgment of acquittal.

We reverse and remand with directions to enter judgment for simple possession of cocaine, pursuant to section 924.34, Florida Statutes (2006). n1

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“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse  [*7]  the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.” § 924.34, Fla. Stat.
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FARMER and GROSS, JJ., concur.

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ANTHONY SHEPPARD, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-4557

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 27, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe and Wayne S. Timmerman, Judges.

COUNSEL:   James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   WALLACE, Judge. STRINGER and SILBERMAN, JJ., Concur.

OPINION BY:   WALLACE

OPINION  

WALLACE, Judge.

Anthony Sheppard challenges the trial court’s denial of his pro se motion to withdraw his guilty plea. We conclude that the trial court should have struck the motion as an unauthorized pro se pleading instead of conducting an evidentiary hearing. Accordingly, we reverse the denial of the motion to withdraw plea and remand with directions to strike the motion as a nullity.

The Facts and Procedural Background

On August 9, 2005, Mr. Sheppard pleaded guilty to violating his community control previously imposed for convictions of two counts of uttering a forged instrument–a third-degree felony. § 831.02, Fla. Stat. (2001). An Assistant Public Defender (the APD) represented Mr. Sheppard at the community control revocation hearing. The APD told the trial court that the State had offered  [*2]  “a year and a day followed by four years of sex offender probation.” n1 The APD candidly advised the trial court that he and Mr. Sheppard agreed that Mr. Sheppard was unlikely to successfully complete the probationary portion of such a split sentence. n2 The APD also informed the trial court that Mr. Sheppard’s scoresheet under the Criminal Punishment Code reflected a minimum sentence of a nonstate prison sanction, and he asked the trial court for a “straight time” sentence of eighteen to twenty-four months’ imprisonment with no probation to follow. After a lengthy discussion of Mr. Sheppard’s admitted inability to comply with the reporting and housing requirements of community control, the trial court sentenced him to two consecutive five-year prison terms–ten years total–the maximum for the two third-degree felonies of uttering a forged instrument. § 775.082(3)(d), Fla. Stat. (2001).

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In September 2002, Mr. Sheppard had entered into an unusual plea agreement when he pleaded guilty to the two counts of uttering a forged instrument. This plea agreement incorporated a probation violation from an unrelated 2000 conviction for attempted sexual battery. Our record concerning the September  [*3]  2002 plea agreement is incomplete, but it is clear that the agreement placed Mr. Sheppard in the unusual position of serving sex offender probation for the two uttering convictions.2

The community control violations to which Mr. Sheppard pleaded guilty were failing to report to his community control officer, changing his residence without consent, and violating curfew.
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After sentencing, Mr. Sheppard timely filed a pro se motion to withdraw his guilty plea under Florida Rule of Criminal Procedure 3.170(l) based on the alleged misadvice of counsel. He asserted that his plea was involuntarily made because the APD improperly refused to allow him to accept the State’s plea offer and misled him about the sentence that he would receive.

On May 9, 2006, the trial court held an evidentiary hearing on the motion. The State called the APD as its only witness. The APD identified himself as an employee of the public defender’s office assigned to the sexual offender division. Midway through the APD’s testimony, the trial court interrupted the proceedings to ask, “Who represents Mr. Sheppard?” The APD replied, “This is a pro se motion.” Unaccountably, the trial court then resumed the hearing. Mr. Sheppard  [*4]  did not take advantage of the opportunity to cross-examine “his lawyer.” The unsworn statement that Mr. Sheppard offered in support of his motion is only three lines long in the transcript of the proceedings. Mr. Sheppard did not call any witnesses at the hearing.

Discussion

When Mr. Sheppard filed his pro se motion to withdraw his plea, he was represented by court-appointed counsel. Thus the motion should have been stricken because “[a] rule 3.170(l) motion to withdraw plea filed by a criminal defendant who is represented by counsel is a nullity, unless the defendant makes an unequivocal request to discharge counsel.” King v. State, 939 So. 2d 1196, 1196 (Fla. 2d DCA 2006) (citing Johnson v. State, 932 So. 2d 1169, 1170 (Fla. 2d DCA 2006), Grainger v. State, 906 So. 2d 380, 382 (Fla. 2d DCA 2005), and Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004)). Alternatively, court-appointed counsel could have adopted the pro se motion and then proceeded to represent Mr. Sheppard at the motion hearing. Grainger, 906 So. 2d at 382. The record in this case does not indicate that Mr. Sheppard made a request to discharge counsel, nor does it reflect that defense counsel adopted the pro se  [*5]  motion. Instead, the trial court held an evidentiary hearing at which Mr. Sheppard was left to represent himself while the trial court considered the merits of his motion and his defense counsel testified against him.

This case bears a striking resemblance to the proceedings described in Grainger where the trial court likewise failed to strike a defendant’s pro se motion to withdraw his guilty plea, which the defendant filed while he was represented by court-appointed counsel. Id. at 381-82. In Grainger, we noted first that “[b]ecause [defense counsel] did not file the motion to withdraw plea on behalf of [the defendant], the trial court was required to strike the motion as an unauthorized pro se pleading.” Id. at 382 (emphasis added). We identified a second misstep–this one committed by defense counsel “who, inexplicably, not only failed to act in a representative capacity for [the defendant] but became an adverse witness against his client.” Id. And finally, we identified a third error committed by the trial court when it considered the pro se motion on the merits without providing conflict-free counsel to the defendant:

Consideration of a motion to withdraw plea after sentencing,  [*6]  which is filed pursuant to Florida Rule of Criminal Procedure 3.170(l), is a critical stage in the proceeding, and an indigent criminal defendant has a right to the appointment of conflict-free counsel to assist in the filing of the motion.Id. (emphasis added).

Despite this court’s attempt in Grainger to provide guidance to prevent the repetition of these errors, the trial court and the APD replicated them in Mr. Sheppard’s case. The evidentiary hearing should have never taken place because Mr. Sheppard’s pro se motion should have been struck as a nullity. King, 939 So. 2d at 1196. The APD not only failed to act in a representative capacity for his client, he also became an adverse witness against Mr. Sheppard at the hearing while he was still Mr. Sheppard’s attorney of record. n3 Grainger, 906 So. 2d at 382. And finally, the trial court failed to recognize that Mr. Sheppard had a right to conflict-free counsel who could assist him in his attempt to withdraw his guilty plea. See Mourra, 884 So. 2d at 319 (”One of the benefits of rule 3.170(l) is that it provides the defendant with the right to seek to withdraw a plea at a time when the defendant is still represented by counsel.”).

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As  [*7]  in Grainger, there is no indication in the record in this case that the APD had been relieved of his representation of Mr. Sheppard when the trial court held the hearing on the pro se motion to withdraw plea. See Grainger, 906 So. 2d at 382 n.1.
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For these reasons, we reverse the trial court’s denial of Mr. Sheppard’s pro se motion to withdraw plea and we remand with directions for the trial court to strike the motion as a nullity.

Reversed and remanded with directions.

STRINGER and SILBERMAN, JJ., Concur.

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ERNEST LEE PARKER, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-4404

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 27, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case No. 00-5300 CFA02.
Parker v. State, 921 So. 2d 812, 2006 Fla. App. LEXIS 2752 (Fla. Dist. Ct. App. 4th Dist., 2006)

COUNSEL:   Loren D. Rhoton and Ryan J. Sydejko of Loren Rhoton, P.A., Tampa, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   SHAHOOD, C.J. FARMER and TAYLOR, JJ., concur.

OPINION BY:   SHAHOOD

OPINION  

SHAHOOD, C.J.

Ernest Lee Parker (”appellant”) appeals his twenty-eight year sentence for attempted second degree murder with a firearm. The sentence was imposed upon resentencing following appellant’s successful appeal of the trial court’s order summarily denying his motion under rule 3.850, Florida Rules of Criminal Procedure. Appellant argues that the sentence he received on resentencing, which replaced a twenty-five year sentence subject to a twenty-five year mandatory minimum, violated the holding of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

Appellant was found guilty by a jury of multiple offenses including attempted second degree murder with a firearm. On this count, the trial court sentenced him to twenty-five years in prison with a twenty-five year mandatory minimum for the use of  [*2]  a firearm, pursuant to section 775.087, Florida Statutes (1999). Additionally, the prison sentence was to be followed by fifteen years probation. Appellant later received the same sentence after this court remanded for resentencing following the State’s appeal of the sentence imposed for appellant’s other convictions. State v. Parker, 812 So. 2d 495 (Fla. 4th DCA 2002).

Appellant filed a motion to vacate, set aside, or correct sentence pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant argued, inter alia, that the twenty-five year mandatory minimum sentence on the attempted murder with a firearm count was illegal because there was no finding by the jury that appellant discharged a firearm. Appellant appealed the trial court’s summary denial of the rule 3.850 motion to this court. We held that a clear jury finding that a firearm was discharged was required before the court could enhance a sentence on that basis. Parker v. State, 921 So. 2d 812, 813 (Fla. 4th DCA 2006). We reversed the summary denial of the motion and remanded for attachment of record portions refuting appellant’s claim or, alternatively, for resentencing on the attempted second degree murder with  [*3]  a firearm count. Id.

On remand, the trial court stated its intention to give appellant the equivalent of his previous twenty-five year mandatory minimum sentence. The trial court resentenced appellant to twenty-eight years, reasoning that a twenty-five year prison sentence with the twenty-five year mandatory minimum equated to a twenty-eight year prison sentence with no mandatory minimum where the prisoner was eligible for gain time reductions.

Appellant argues that the imposition of the three-year increase in his sentence upon resentencing amounts to a vindictive sentence in violation of Pearce. This is a question of law subject to de novo review by this court. See Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002).

In Pearce, the Supreme Court held that “[d]ue process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” 395 U.S. at 725. The Court concluded that in order to ensure vindictiveness would not play a role, a trial court imposing a more severe sentence at resentencing was required to make the reasons for the more severe sentence affirmatively appear  [*4]  in the record. Id. at 726. “Pearce and its progeny established ‘a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.’” Wemett v. State, 567 So. 2d 882, 884 (Fla. 1990)(quoting United States v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982)). The holding of Pearce has since been applied to situations such as the present case where an appellant has successfully challenged only the sentence and not the conviction. See Wemett, 567 So. 2d at 884; Richardson v. State, 821 So. 2d 428, 430 (Fla. 5th DCA 2002).

In Thomas v. State, 638 So. 2d 169, 170 (Fla. 1st DCA 1994), Thomas was originally sentenced to forty years as a habitual violent felony offender subject to a fifteen-year mandatory minimum. He later successfully challenged his sentence as illegal. Thomas, 638 So. 2d at 170. Following a hearing, the court resentenced him to fifty years in prison with no mandatory minimum in an attempt to impose a sentence equivalent to the original once gain time and other reductions were taken into account. Id. at 170-71. Thomas appealed his new sentence, arguing that it represented an impermissible penalty under Pearce for challenging  [*5]  his original sentence. Id. at 170. The First District affirmed, reasoning that no presumption of vindictiveness arose because Thomas had failed to demonstrate that the new sentence was actually more severe than the original sentence. Id. at 172.

In Richardson, Richardson received concurrent sentences of twenty-two and twenty-seven years. 821 So. 2d at 430. Richardson then filed a motion to correct sentence pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure. Id. He argued the sentences exceeded the maximum allowed by the guidelines. Id. The court granted Richardson’s motion, but then sentenced him to two consecutive fifteen-year sentences without explanation. Id. at 431.

On appeal, Richardson claimed that his sentence was vindictive because it increased the aggregate sentence from twenty-seven to thirty years without an explanation. Id. The appellate court agreed, finding the vindictiveness presumption of Pearce applicable and noting that the last two sentencing hearings had been conducted by the same judge with the same information. Id. The court stated that “there was no independent legal basis or identifiable conduct on Richardson’s part, other than the filing of a legally  [*6]  meritorious 3.800 motion, which occurred after the imposition of the twenty-seven year sentence to justify the harsher sentence.” Id.

In this case, the same trial judge that previously sentenced appellant increased the length of the sentence by three years, with no independent legal basis or identifiable conduct by appellant as a basis for the increase. We hold that the trial court erred in resentencing appellant, despite its attempt to achieve a sentence equivalent to appellant’s previous sentence by taking possible gain time reductions into consideration. We stress that our holding is not that there was actual vindictiveness on the part of the trial judge, but rather that the presumption of vindictiveness was not overcome. See Wemett, 567 So. 2d at 886.

We accordingly reverse and remand for resentencing with directions that appellant be sentenced to a period of not more than twenty-five years, reduced by any applicable credits. We also certify conflict with Thomas to the extent of any inconsistency.

Reversed and Remanded.

FARMER and TAYLOR, JJ., concur.

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KEVIN KOSITSKY, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D07-251

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 27, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Fogan, Senior Judge; L.T. Case No. 06-10358CF10A.

COUNSEL:   Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   KLEIN, J. GROSS, J., concurs. FARMER, J., dissents with opinion.

OPINION BY:   KLEIN

OPINION  

KLEIN, J.

Appellant was charged with DUI and, because of statements he made after he was arrested, he was also charged with corruption of a public official by threat. He appeals his corruption conviction, arguing that the trial court should have granted his motion for judgment of acquittal, because, although there was a threat, the element of intent to influence performance of an act by a public servant was not established. We agree and reverse.

Corruption by threat against a public servant is defined in section 838.021, Florida Statutes (2006), as follows:

Corruption by threat against public servant

(1) Whoever unlawfully harms or threatens unlawful harm to any public servant, to his or her immediate family, or to any other person with whose  [*2]  welfare the public servant is interested, with the intent or purpose:

(a) To influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.

Before we set out the facts, which include threats about slitting the officer’s throat and kicking the officer’s ass, it is significant to note that the information charged a violation of the statute only by “threaten to slit his throat.”

The officer who arrested appellant testified that he stopped appellant after watching him make a U-turn, run a red light, and speed. Appellant smelled of alcohol and admitted he was drunk. After appellant failed the roadside sobriety test, the officer arrested him for DUI. The corruption charge is based on statements made by appellant after appellant had been handcuffed, while he was being “loud and obnoxious.” Two officers, Randazzo and Cook, heard the threats. According to Officer Randazzo, appellant told him to remove his handcuffs, “or he’d kick his ass.” At another point appellant said he “would slit his throat.” Officer Upchurch  [*3]  testified that he heard appellant threaten to kick Randazzo’s ass “if we took him out of the cuffs.” He heard appellant repeatedly say, “You don’t know who I am. Take these cuffs off me. I’ll kick your ass.” At another point, appellant told Randazzo, in the presence of Officer Upchurch, CSA Gray and Deputy Whaley, that “he would slit his throat if the cuffs were removed.” Officer Randazzo was not afraid when appellant said this because appellant was in handcuffs at the time. He took it with a “grain of [salt].”

We agree with appellant that, because the information referred only to the threat to slit the officer’s throat, we should not consider the threat to kick the officer’s ass in determining if the state proved the corruption charge.

Considering that it was undisputed that the appellant was in handcuffs, we agree with appellant that the trial court should have granted his motion for judgment of acquittal. The threat to slit the officer’s throat “if the cuffs were removed” could not have had the intent of influencing the performance of an act. If anything, it would have the opposite effect. The result would be different if appellant had threatened to slit the officer’s throat if the  [*4]  handcuffs were not removed. Reversed.

GROSS, J., concurs.

FARMER, J., dissents with opinion.

DISSENT BY:   FARMER

DISSENT  

FARMER, J., dissenting.

The majority holds that there is no evidence that the threats were made to influence the performance of an act by the police officers. Yet in the second paragraph they acknowledge that he prefaced his threats with words to the effect “if [the officers] do not remove the handcuffs.” So it is manifest that his announced purpose was to get the police to take the handcuffs off of him. That sounds to me very much like a threat to “influence the performance of an act,” namely whether to keep him cuffed. I therefore cannot say that there is no evidence of using a threat to influence official conduct.

To be sure, this prosecution strikes me as ill-advised and excessive. Many drunk people become “loud and obnoxious” — especially after being arrested. Alcohol erases inhibitions and emboldens the timid. I don’t wonder that more people aren’t similarly charged and convicted.

Yet I am compelled to affirm.

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WINSTON WHITTINGHAM, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-3975

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

February 27, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Eileen M. O’Connor, Judge; L.T. Case No. 06-4391 CF10A.

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

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

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

OPINION BY:   WARNER

OPINION  

WARNER, J.

Appellant challenges his convictions and sentences for various sexual crimes against a child, including sexual battery, lewd or lascivious battery, lewd or lascivious molestation, false imprisonment, and simple battery. The charges arose from a multi-year course of abuse of a child victim by the appellant. He contends that the court submitted to the jury several counts which included multiple, distinct acts such that his conviction could have been based upon a non-unanimous jury verdict on those counts. He raises this issue as a fundamental error, as he did not object in the proceedings in the trial court. We affirm, as we hold that the error is not fundamental, and any objection should have been raised at trial.

Appellant sexually abused the child victim,  [*2]  the daughter of his girlfriend, over a period of years. When the state finally charged him with these crimes, it grouped the various types of abuse into single counts. On some counts, the victim’s testimony showed multiple, indistinct acts within a certain time range. On one count of abuse by way of vaginal intercourse, the victim was able to remember several distinct acts of intercourse at different places and different times. The defense did not object to the charging of these incidents in one count or to the submission to the jury of this one count. The jury convicted the defendant as charged.

On appeal, appellant argues that because several counts submitted to the jury were each supported by more than one criminal episode, the jury verdict could be non-unanimous, resulting in a fundamental error in violation of this court’s holding in Perley v. State, 947 So. 2d 672 (Fla. 4th DCA 2007). We conclude that Perley is distinguishable. We hold that the issue may not be raised for the first time on appeal.

We considered the issue of how charging patterns in child sexual abuse cases may result in non-unanimous verdicts in State v. Dell’Orfano, 651 So. 2d 1213 (Fla. 4th DCA 1995). There,  [*3]  the state had charged a single criminal act in each count, but the act had occurred multiple times within the time period alleged. The trial court dismissed the information, because it concluded that charging multiple acts within one count would prevent a jury from rendering a unanimous verdict of guilt. One juror could find that the defendant committed one of the acts but not the other, while another juror may not agree and find that the defendant committed another of the alleged charges. The state argued that, instead, each count charged a single criminal act which was committed multiple times. To find a defendant guilty, each juror must find that the defendant committed the act on at least one occurrence.

We noted that most courts which had considered the issue had permitted the prosecutor discretion in the charging pattern in child sexual abuse cases. In particular, we pointed to a Washington Supreme Court decision which explained:

Multiple instances of criminal conduct with the same child victim is a frequent, if not the usual, pattern. Whether the incidents are to be charged separately or brought as one charge is a decision within prosecutorial discretion. Many factors are weighed  [*4]  in making that decision, including the victim’s ability to testify to specific times and places. . . . The criteria used to determine that only a single charge should be brought, may indicate that the election of one particular act for conviction is impractical.Id. at 1215 (citation omitted) (quoting State v. Petrich, 101 Wn.2d 566, 683 P.2d 173, 178 (Wash. 1984) (en banc)). Although acknowledging the majority view, we nevertheless held, “Where it is reasonable and possible to distinguish between specific incidents or occurrences, as it is in this case, then each should be contained in a separate count of the accusatory document.” Id. at 1216.

Applying the principle in State v. Generazio, 691 So. 2d 609 (Fla. 4th DCA 1997), however, we held that the prosecutor did not abuse his discretion in charging one count for each type of sexual act, where the victim had been continually abused over an eight-month period and could not remember specific dates or narrow the time period. The victim could identify several different types of sexual abuse, and the prosecutor charged all incidents of each type of sexual abuse in one count. Specifically the information charged the defendant with a type of sexual abuse  [*5]  “on one or more occasions” within a particular time period. We held that this charging pattern was legally sufficient.

Similarly, the prosecutor in this case charged the defendant with a different type of sexual abuse in each separate count. Some counts charged that the act occurred within a specific time frame. Others charged the specific type of sexual abuse “on one or more occasions” within a specified time range. This is the same method of charging that we approved in Generazio when a victim cannot be more specific regarding dates or events. The appellant never moved to dismiss the information or requested a bill of particulars to narrow the time gap or challenged the method of charging in any respect.

Child sexual abuse cases pose unique problems for prosecution, as our supreme court has recognized. See Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla. 1993). Because the state may charge a defendant in child sexual abuse cases in a manner not permitted in other types of criminal cases, expanding time periods for the commission of offenses and grouping types of offenses together, we hold that it is not fundamental error to submit such a charge to the jury. A defendant must object at  [*6]  trial to submission to the jury of an aggravated charge to preserve the objection. Otherwise, the prosecution may assume that by failing to challenge the charging pattern, the defendant has acquiesced in the state’s determination to charge all of the same type of acts within a single count. Indeed, by doing so the prosecution actually lessens the potential penalty to the defendant. Where each charge is discrete and charged as such, the defendant is subject to substantially greater penalties and potential consecutive sentencing on each charge.

We distinguish Perley v. State, 947 So. 2d 672 (Fla. 4th DCA 2007). There the defendant was charged with a single count of escape, but the evidence showed two distinct incidents which could have been considered escape. In closing argument, the prosecutor told the jury that it could convict of either incident of escape. On appeal, we held that the prosecutor’s affirmative invitation to the jury to find guilt by essentially a non-unanimous verdict constituted fundamental error. Here, in contrast, the prosecutor made no such affirmative invitation. More importantly, however, Perley was not a child sexual abuse case, which the courts have consistently  [*7]  treated differently from other types of prosecution. Perley does not require reversal on fundamental error grounds in this case.

In a second point, appellant argues that his convictions for committing lewd or lascivious molestation and lewd or lascivious battery violate double jeopardy, because they occurred during the same episode. We have examined the charging document and the evidence presented, however, and conclude that the two charges did not arise out of the same incident. We therefore affirm on this issue as well.

Affirmed.

FARMER and GROSS, JJ., concur.

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