Florida Criminal Law Opinions

L.S., a child, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-4039

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

March 31, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   PADOVANO, LEWIS, and THOMAS, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant appeals the trial court’s order committing him to a moderate risk facility. Because the trial court erred when it failed to explain why its consideration of the evidence led it to reach a different conclusion than that recommended by the Department of Juvenile Justice (DJJ) and failed to reference the characteristics of a moderate risk facility vis-a-vis Appellant’s needs, we must reverse.

Appellant was arrested for burglary of a dwelling on February 27, 2007, and placed on home detention. Although Appellant absconded for 23 days in May 2007, the court again placed him on home detention upon his return home. Appellant pled guilty to trespassing in June 2007 and the DJJ completed a predisposition report, recommending that Appellant be placed on probation. Instead, the court placed Appellant in a moderate risk commitment facility following his  [*2]  disposition hearing. The court gave no reason for its deviation from the DJJ’s recommendation at the hearing, but stated in its written order that “[Appellant] has a history of not obeying the law or authority figures. This requires a more restrictive disposition for protecting the public.”

Section 985.433(7)(b), Florida Statutes (2006), permits the court to deviate from the DJJ’s recommendation, stating,

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record reasons that establish by preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

When the trial court departs from DJJ’s recommendation, it “must not only state its reasons for disregarding the recommended restrictiveness level on the record, the reasons must also be supported by a preponderance of the evidence and must make reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.” C.C.B. v. State, 828 So. 2d 429, 431 (Fla. 1st DCA 2002) (citing A.C.N. v. State, 727 So. 2d 368, 370 (Fla. 1st DCA 1999)).

Here,  [*3]  the court did not specifically explain why it departed from the DJJ’s recommendation upon its consideration of the identical facts which the DJJ considered when recommending probation for Appellant. This is reversible error. See E.S.B. v. State, 822 So. 2d 579, 581 (Fla. 1st DCA 2002) (stating that the court may reweigh the same factors the DJJ used, but it must explain why such evidence led it to reach a different conclusion). Additionally, the court order did not reference the characteristics of a moderate risk commitment vis-a-vis Appellant’s needs. This is also reversible error. See A.C.N., 727 So. 2d at 370 (holding that trial court must reference the characteristics of the restrictiveness level vis-a-vis the needs of the child). Accordingly, we reverse the trial court’s order and remand for a new disposition hearing. C.M.K. v. State, 855 So. 2d 1234, 1236 (Fla. 1st DCA 2003).

REVERSED and REMANDED.

PADOVANO, LEWIS, and THOMAS, JJ., CONCUR.

MELVIN WOODARD, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-2204

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

March 31, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Gadsden County. P. Kevin Davey, Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   KAHN, J. WOLF and VAN NORTWICK, JJ., CONCUR.

OPINION BY:   KAHN

OPINION  

KAHN, J.

The issue in this case is whether section 90.404(2)(b), Florida Statutes (2006), allowed the admission of certain evidence by the trial court. Appellant Woodard stood charged with two counts of lewd or lascivious molestation. Because the ruling below strayed from our supreme court’s authoritative construction of the statute in question, we reverse and remand for a new trial.

The charges in this case alleged appellant’s commission of lewd or lascivious molestation against F.W. and St. R. F.W. testified that she was twelve years old in the spring of 2005 when, while sleeping in the living room of her aunt’s apartment, appellant, the aunt’s boyfriend, entered the room and touched her “butt . . . with his private part.” According to F.W., appellant left the room, but returned shortly, and “started messing with [St. R.],” F.W.’s young cousin, placing  [*2]  his sex organ against St. R.’s partially exposed buttocks. St. R. also testified at trial, remembering only that appellant was her mother’s boyfriend. She recalled nothing about the incident in question. The State presented no further direct evidence as to the incident.

The prosecution did, however, introduce the testimony of Sh. R., then age 31. This witness testified that when she was twelve years old, in 1988, appellant committed a “sexual assault” upon her in her home. Sh. R. did not testify as to the details of that episode, merely responding in the affirmative when the assistant state attorney asked her whether the 1988 incident involved “some sexual activity by Mr. Melvin Woodard against you when you were 12 years of age[.]” Appellant had moved in limine to exclude this testimony, but the trial court denied the motion, finding that section 90.404(2)(b) did not require a showing of similar acts, “just that there are children involved and . . . molestation.” This was error.

In McLean v. State, the Florida Supreme Court upheld the constitutionality of section 90.404(2)(b) “as a conduit for evidence that corroborates the victim’s testimony that the crime occurred rather than to prove  [*3]  the identity of the alleged perpetrator.” 934 So. 2d 1248, 1251 (Fla. 2006). The McLean court constrained its holding, however, by explaining the conditions under which similar crime evidence might be admitted in a child molestation case. The statute reads:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.§ 90.404(2)(b)1., Fla. Stat. (2006).

The evidence proffered under the statute must satisfy the several requirements laid down by the McLean court. Initially, the trial court must determine that the evidence clearly and convincingly shows the defendant committed the prior act. McLean, 934 So. 2d at 1262. The court must then “assess[] whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice,” and must therefore determine whether the prior act is sufficiently similar to the charged act. Id. To guide this analysis, McLean mandates consideration of the following factors:

(1) the similarity of the  [*4]  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. . . . The trial courts should also consider other factors unique to the case.Id. Finally, the trial court must ensure the evidence will not “become a feature of the trial” or “confuse or mislead jurors . . . .” Id. The required determination of similarity must be made on a case-specific basis. Id. at 1258.

Appellate courts have now had occasion to apply the rules set out in McLean to the type of evidence we examine here. See, e.g., Mendez v. State, 961 So. 2d 1088, 1091 (Fla. 5th DCA 2007) (finding sex acts upon young male under defendant babysitter’s care sufficiently similar to same sex acts defendant committed upon male child at camp where he was counselor two or three years before, where defendant “was a counselor to each [victim] and had custodial authority over them at the time of the offenses”); Triplett v. State, 947 So. 2d 702, 704 (Fla. 5th DCA 2007) (affirming  [*5]  conviction for molestation where State introduced evidence of prior acts that “shared numerous similarities with the charged offense,” that “did not become a feature of the trial,” and that prosecutor “barely mentioned in closing”). Similar fact evidence is not, however, always admissible in child molestation cases.

In Fiore v. State, the State alleged the defendant touched and, in one instance, penetrated the then-eight-year-old victim’s genitalia while she slept at his house on three separate occasions, all of which occurred about nine years before the trial. 967 So. 2d 995, 996 (Fla. 5th DCA 2007). At trial, the State introduced the testimony of two alleged victims of collateral crimes, appellant’s wife, and one collateral victim’s mother, all of whom testified regarding the collateral crimes. Id. The first collateral victim, K.C., testified that, approximately two years before the trial, when she was eight or nine years old, appellant, who was in her home on a social visit, touched her private parts while she sat on the living room couch. Id. A second collateral victim, twenty-four-year-old K.D., testified that, eight years before the trial, she was visiting appellant’s home when  [*6]  he threw her onto a bed and had sexual intercourse with her. Id. at 996-97. The Fifth District held it was error to admit the witnesses’ testimony. Id. at 999. The court found “a significant lack of similarity between the charged offense and K.D.’s allegations,” but noted that “the allegations relating to K.C. are more similar and, perhaps, admissible.” Id. The court reversed the convictions and remanded for a new trial, explaining:

. . .the similar fact evidence became a central feature of the trial . . . . Greater emphasis was placed on the [collateral offenses] than was placed on the charged offense . . . . A majority of the testimony related to these collateral crimes. [The victim's] testimony was sandwiched between the testimony of K.C. and K.D., and, in closing, the prosecutor continually addressed all three offenses.”Id.

Similarly, in Cann v. State, the defendant was charged with sexual battery on a person younger than twelve and lewd or lascivious molestation, after his wife found him engaged in sexual intercourse with his seven-year-old granddaughter. 958 So. 2d 545 (Fla. 4th DCA 2007). The Fourth District held that the trial court properly admitted the victim’s aunt’s testimony  [*7]  that, when she was the victim’s age, the defendant tried to have intercourse with her. Id. at 549. The court also held, though, that the trial court erred in admitting the aunt’s testimony about a dissimilar occasion when she was older, on which the defendant tried to untie her bathing suit and “grab[] her breasts,” but the court concluded the error was harmless, “as the crucial evidence of the similar sexual attack when the aunt was the same age as C.C. was admissible.” Id.

In Zerbe v. State, the defendant, a karate instructor, faced child abuse and lewd and lascivious molestation charges after an eleven-year-old student reported that the defendant accompanied her to urinate outside the studio and touched her genitals and, on another occasion, told her to go to the bathroom and pressed on her stomach. 944 So. 2d 1189, 1191 (Fla. 4th DCA 2006). The State introduced the testimony at trial of a five-year-old student, who told her grandmother that the defendant had asked her to remove her pants and watched her as she disrobed. Id. at 1190-91. The Fourth District held the trial court committed reversible error in admitting evidence regarding the defendant’s collateral crime with respect  [*8]  to the five-year-old, identifying several fatal flaws in the testimony, including the fact that the State did not show, by clear and convincing evidence, that the defendant committed the alleged act upon the five-year-old, and the fact that “the acts were not sufficiently similar.” Id. at 1194. Although both alleged acts occurred at the defendant’s karate school, “the charged crime involved a touching while the collateral act involved the defendant’s observation of a young child partially undressed,” and “the events took place five-and-a-half months apart with the collateral act occurring subsequent to the charged crime.” Id.

The questioned evidence in the present case did not satisfy the requirements of McLean, or of the cases following and applying McLean. Sh. R. presented vague testimony regarding an incident that occurred some seventeen years before the charged crimes. She described the incident only as a “sexual assault.” The record reveals none of the analyses or findings required by McLean. In the absence of such findings, we note that the few details available about the collateral crime do not support a conclusion that the 1988 incident was sufficiently similar to the charged  [*9]  offenses. For better or worse, we know nothing about the 1988 incident, save the witness’s characterization of it as a “sexual assault.”

Having concluded that the proffered evidence was improperly admitted, we have also considered the impact of the evidence at the trial. The State had no evidence to corroborate F.W.’s testimony other than the collateral crime evidence elicited from Sh. R. Moreover, the prosecutor referred to the 1988 incident in both the opening statement and closing argument. We are unable to find that admission of this evidence was harmless error.

Based upon the foregoing, we REVERSE appellant’s conviction and REMAND for a new trial.

WOLF and VAN NORTWICK, JJ., CONCUR.

DANIEL ALLEN REAVES, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-1205

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

March 31, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Escambia County. Nickolas P. Geeker, Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   WEBSTER, DAVIS, and HAWKES, JJ., CONCUR.

OPINION  

PER CURIAM.

This is an appeal from Appellant’s convictions for racing on a highway, in violation of section 316.191 (2) (a), Florida Statutes (2005), and vehicular homicide, in violation of section 782.071 (1), Florida Statutes (2005). The convictions were entered below based upon Appellant’s guilty plea. Appellant now argues the trial court abused its discretion by denying his motion to withdraw his guilty plea to vehicular homicide. He claims this charge lacked a factual basis on the element of causation. Also, Appellant contends section 316.191 is facially unconstitutional as void for vagueness. We find Appellant’s arguments unpersuasive and affirm his convictions.

I

Appellant was involved in an incident described in a probable cause affidavit. According to the affidavit, on May 29, 2005 at approximately 12:50 a.m., Appellant and Benjamin Street began  [*2]  to drag race at a high rate of speed. Street had a passenger in his vehicle, Brandy Byer. When Street attempted to pass Appellant in a “no passing zone,” Appellant increased his speed, causing the two cars to come side by side as they approached a median. Immediately before the median, Street increased his speed in an attempt to cut in front of Appellant’s vehicle. However, Street’s car struck the median and spun out of control, striking two trees in quick succession before flipping through the air. The impact with the second tree was on the passenger side, where Byer was riding, and she died as a result of the crash. Appellant, realizing the accident had occurred, immediately left the scene.

Appellant was subsequently charged by information with one count of racing on a highway, and one count of vehicular homicide and leaving the scene of an accident. He pled guilty to racing and vehicular homicide, without the aggravating factor of leaving the scene. The trial court found the plea supported by an adequate factual basis.

Appellant then moved to withdraw his plea to the vehicular homicide charge, claiming Street alone was the proximate cause of Byer’s death as he recklessly drove the  [*3]  vehicle in which she was a passenger. Appellant concluded that without causation, there was an insufficient factual basis for his plea and it should be set aside.

Following a hearing, the trial court denied Appellant’s motion, emphasizing that Appellant had admitted to participating in the unlawful race, Byer was not a direct participant in the race, and past caselaw held all drivers in an unlawful race responsible for the deaths of innocent bystanders. Appellant was sentenced as a youthful offender to four years imprisonment, followed by two years of probation, for the vehicular homicide charge, and time served on the racing charge. This appeal followed.

II

Appellant argues the trial court should have granted his motion to withdraw his guilty plea to vehicular homicide as the charge was not supported by the element of causation. Appellant claims he was not the cause of Byer’s death, proposing two alternate theories of causation. First, Appellant implies that since Byer was a voluntary participant in the race, she was in effect the cause of her own death. Second, Appellant claims that Street alone should be found the cause because he refused to slow down and merge as his car approached  [*4]  the median. These claims are unpersuasive.

Appellate courts review a trial court’s denial of a motion to withdraw a guilty plea under an abuse of discretion standard. See Wright v. State, 961 So. 2d 1036, 1040 (Fla. 4th DCA 2007); Cabrera v. State, 915 So. 2d 727, 728 (Fla. 5th DCA 2005). Upon a showing of good cause, a trial court may permit a guilty plea to be withdrawn before sentencing. See Fla. R. Crim. P. 3.170 (f). Since it is fundamental error to accept a plea that is not factually supported, a good cause for withdrawal is insufficient factual support. See Fla. R. Crim. P. 3.170 (k) (1); Allen v. State, 876 So. 2d 737, 739-740 (Fla. 1st DCA 2004).

Vehicular homicide “is the killing of a human being . . . caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2005). Proximate causation, or a causal connection between the defendant’s reckless driving and the victim’s death, is an essential element of vehicular homicide. See Armenia v. State, 479 So. 2d 260, 262 (Fla. 5th DCA 1985).

Turning to Appellant’s claim that Byer effectively caused her own death, we have found that  [*5]  a “decedent’s conduct may only be asserted as a defense to vehicular homicide when that conduct could be viewed as the sole proximate cause of the accident which resulted in the death.” Union v. State, 642 So. 2d 91, 94 (Fla. 1st DCA 1994) (emphasis added); see also Michel v. State, 752 So. 2d 6, 12 (Fla. 5th DCA 2000); Nunez v. State, 721 So. 2d 346, 347 (Fla. 2nd DCA 1998). Cases where the decedent is held responsible involve circumstances where the deceased’s conduct alone led to his or her death.

For instance, in J.A.C. v. State, 374 So. 2d 606, 607 (Fla. 3rd DCA 1979), a passenger in a car being driven in a drag race was found to be the proximate cause of her own death. However, the accident resulting in the death occurred “only because the decedent, while attempting to operate the gear shift, instead grabbed the steering wheel and caused the vehicle to go out of control.” Id. (emphasis added).

Similarly, in Velazquez v. State, 561 So. 2d 347, 353 (Fla. 3rd DCA 1990), the decedent was found responsible after inexplicably driving his car through a guardrail following a drag race with the defendant. Since the decedent volitionally drove his car off the embankment after the race had  [*6]  ended, it was found “unjust to hold the defendant criminally responsible for the deceased’s unexpected and near-suicidal conduct.” Id.; see also Union, 642 So. 2d at 94. n1

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -1

To the extent Velazquez may be more broadly read as refusing to impose criminal liability on a defendant for the death of a co-participant in a drag race, it has been found unpersuasive. See State v. Farner, 66 S.W.3d 188, 200-201 (Tenn. 2001) (stating “better-reasoned cases reject” such an approach and “uphold homicide convictions when the victim is a co-participant in a drag race.”). The rationale that a defendant cannot be held liable when a victim voluntarily participates in the conduct causing his or her death has been criticized as “distort[ing] the meaning of legal cause.” Wayne R. LaFave, Substantive Criminal Law § 6.4 (h) (3d ed. 2003).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Here, there is no evidence Byer attempted to grab the steering wheel or was in control of the car when it struck the median. Similarly, there is no evidence she played an active role in the race, or that she even acquiesced to Street’s decision to participate in the race. However, there is evidence that Appellant was at least partially responsible for Byer’s death as he refused  [*7]  to let Street’s car merge as they approached the median. Since there is no evidence that Byer’s conduct was the sole cause of the accident, she cannot be considered the proximate cause of her own death.

Similarly unpersuasive is Appellant’ s argument that Street was the sole cause of Byer’s death. When a party creates a condition of peril by his wrongful conduct, his actions can be found the proximate cause of the resulting injury, even if later events combined to cause such injury, so long as the later acts reasonably followed in the natural sequence of events. See State v. Gensler, 929 So. 2d 27, 31 (Fla. 3rd DCA 2006); M.C.J. v. State, 444 So. 2d 1001, 1005 (Fla. 1st DCA 1984) (stating an intervening cause cannot be foreseeable).

Here, Street’s refusal to slow his vehicle and merge as the cars approached the median does not excuse Appellant’s liability in Byer’s death. It was natural, and thus foreseeable, for Street to increase his speed and attempt to pass Appellant as they were engaged in a high speed race. Arguably, Appellant alone created the condition of peril by increasing his speed to match that of Street’s car, instead of allowing Street to safely pass by. Regardless, since  [*8]  Street’s actions were a foreseeable response to Appellant’s conduct, both Appellant and Street may be held liable for Byer’s death. See Jacobs v. State, 184 So. 2d 711, 716 (Fla. 1st DCA 1966) (finding “[t]he deaths which proximately resulted from the activities of the three persons engaged in the unlawful activity of drag racing made each of the active participants equally guilty of the criminal act which caused the death of the innocent party”).

Given the foregoing, the charge of vehicular homicide had adequate factual support and the trial court did not abuse its discretion by denying Appellant’s motion to withdraw his guilty plea.

III

Regarding the facial validity of section 316.191, Appellant claims the statute should be found unconstitutionally vague pursuant to Wells v. State, 965 So. 2d 834 (Fla. 4th DCA 2007). However, as discussed below, we find that the statute can be interpreted in such a way as to survive a facial constitutional challenge.

A statute cannot be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. See Lakeland Reg’l Med. Ctr., Inc. v. State, Agency for Healthcare Admin., et al., 917 So. 2d 1024, 1030 n.1 (Fla. 1st DCA 2006).  [*9]  When reasonably possible and consistent with constitutional rights, all doubts concerning a statute should be resolved in favor of its validity. See State v. Brake, 796 So. 2d 522, 527 (Fla. 2001). However, any doubts raised in a vagueness challenge should be resolved in the citizen’s favor and against the State. Id.

Applying these principles, we conclude that section 316.191 can survive a facial challenge, contrary to the Fourth District’s finding in Wells. Section 316.191, Florida Statutes (2005), states, in pertinent part:

(1) As used in this section, the term:

(b) “Drag race” means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.

(c) “Racing” means the use of one or more motor vehicles in an attempt to outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination  [*10]  ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long-distance driving routes.

(2) (a) A person may not:

1. Drive any motor vehicle, including any motorcycle in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any highway, roadway, or parking lot.

Traditionally, when considering the facial validity of a statute, the standard to be applied is whether the statute’s language is sufficiently definite to warn a person of common intelligence of the activity it proscribes. See Wilkerson v. State, 401 So. 2d 1110, 1111 (Fla. 1981). The statute’s language must not lend itself to arbitrary enforcement at an officer’s discretion. See Wyche v. State, 619 So. 2d 231, 234 (Fla. 1993). However, in cases such as this, when a defendant facially challenges a statute based on vagueness, and the statute does not implicate constitutionally protected conduct, the court must determine if the enactment is impermissibly vague in all its applications. See Travis v. State, 700 So. 2d 104, 105-106 (Fla. 1st DCA 1997).  [*11]  In doing so, “the court must begin by applying the enactment to the facts of the case at hand.” Id. at 106.

Here, section 316.191 fairly proscribes Appellant’s conduct. According to the probable cause affidavit, Appellant engaged in a high speed drag race on a public road against another vehicle. The obvious purpose of Appellant’s conduct was to outdistance the other car and be the first to arrive at a given destination. This conduct, combined with the fact that Appellant refused to let the other vehicle pass, is encompassed by the definition of “racing” and, more importantly, is expressly prohibited by section 316.191 (2) (a) (1). Thus, the statute is facially valid.

This finding directly conflicts with the Fourth District’s conclusion in Wells, where it determined section 316.191 to be unconstitutionally vague. See 965 So. 2d at 834. The Fourth District found the statute’s definition of “racing” as the “use of one or more vehicles in an attempt to outgain or outdistance another motor vehicle” included legal activities such as passing and accelerating from a stop. Id. at 839. It concluded that “[s]ection 316.191, by failing to include an element of competition in its out-of-the-ordinary  [*12]  definition of ‘race,’ encompasse[d] an endless range of otherwise legal conduct . . . so as to make the scope of proscribed conduct vague and the statute facially unconstitutional.” Id.

The Fourth District’s finding that the definition of “racing” should have included an element of competition is unpersuasive. When engaging in statutory interpretation, “related statutory provisions must be read together to achieve a consistent whole.” Woodham v. Blue Cross & Blue Shield, Inc., 829 So. 2d 891, 898 (Fla. 2002); see also Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 199 (Fla. 2007). Here, section 316.191 (2) (a) (1) prohibits drivers from engaging in, among other things, “any race, speed competition or contest, [or] drag race or acceleration contest.” (emphasis added). Moreover, the legislature defined “drag race” as when two vehicles engage “in a competitive attempt to outdistance each other.” § 316.191 (1) (b), Fla. Stat. (emphasis added). Reading these provisions together, the statute cannot be applied unless vehicles are “competing” with each other. Therefore, we decline to follow Wells and find section 316.191 facially constitutional.

IV

We affirm Appellant’s convictions for racing  [*13]  on a highway and vehicular homicide. In so doing, we reject Appellant’s claims that his motion to withdraw his guilty plea was improperly denied and that section 316.191 is facially unconstitutional. We certify conflict with Wells, to the extent that it found section 316.191 facially invalid as void for vagueness.

AFFIRMED.

WEBSTER, DAVIS, and HAWKES, JJ., CONCUR.

FREDDRICK HINES, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-4305

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

March 31, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Alachua County. Mary Day Coker, Acting Circuit Judge.

COUNSEL:   Nancy A. Daniels, Public Defender; Steven L. Seliger and M.J. Lord, Assistant Public Defenders, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   THOMAS, J. POLSTON and HAWKES, JJ., CONCUR.

OPINION BY:   THOMAS

OPINION  

THOMAS, J.

Appellant appeals his convictions for robbery with a firearm and actual possession of a firearm by a convicted felon on March 3, 2002. Because the trial court abused its discretion by admitting into evidence Appellant’s alleged possession of a firearm on March 21, 2002, a crime for which he was acquitted, we reverse. We do not consider the other issues Appellant raises, as we find this issue to be dispositive.

Facts and Procedural History

Appellant was arrested on March 21 at his girlfriend’s apartment. That same day a crime scene investigator found a .357 gun in a barbeque grill outside the sliding glass door leading into the back of her apartment.

Appellant proceeded to trial on the following charges: grand theft of an automobile, possession of an illegal shotgun, fleeing in an attempt to elude law enforcement,  [*2]  and possession of a firearm by a convicted felon on March 21, based on both the shotgun found in the trunk of the car he was driving before his arrest and the .357 gun found in the grill. The trial court granted Appellant’s motion for a judgment of acquittal on the charge of felony fleeing in an attempt to elude law enforcement.

The jury convicted Appellant of grand theft and possession of an illegal shotgun. The trial court then directed the jury to consider the charge of felon in possession of a weapon; the jury returned a verdict of not guilty, specifically rejecting that Appellant possessed a weapon either actually or constructively.

Following his acquittal on the possession charge, Appellant filed a motion in limine in the instant case to preclude the State from introducing the .357 found in the grill into evidence in this case. He argued that because he was acquitted, admission of this evidence was prohibited under Perkins v. State, 349 So. 2d 161 (Fla. 1977). The trial court denied his motion.

Appellant then proceeded to trial on the charges of armed robbery and possession of a firearm by a convicted felon which arose out of the March 3, 2003 events. The robbery victim testified  [*3]  at trial, identifying Appellant as the man who robbed him with a .357 on March 3. To show that Appellant had access to a .357 near the time this robbery occurred, the State introduced evidence that a .357 was found in the barbeque grill on March 21. It argued that on March 21, Appellant ran from the scene of a car accident, past the grill, and into his girlfriend’s apartment through the sliding glass door. The State argued that an innocent man would not place a gun inside a barbeque grill. No evidence was presented to suggest that Appellant placed the gun inside the grill at any time other than March 21, the date for which he was acquitted of the possessions charge.

Legal Analysis

A trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. Globe v. State, 877 So. 2d 663, 673 (Fla. 2004).

Appellant argues that evidence of his possession of the .357 shotgun on March 21 was impermissible because he had previously been acquitted of the charge. In Perkins, the supreme court held that evidence of collateral crimes for which a defendant has been acquitted is not admissible in a subsequent trial. 349 So. 2d at 163-64. The Perkins rule, however,  [*4]  precludes evidence of an acquitted collateral crime only when the prior verdict clearly decided in the defendant’s favor the issue for which admission of the collateral crime is sought. Diaz v. State, 609 So. 2d 1337, 1341 (Fla. 3d DCA 1992). When making this determination, a trial court should consider the record of the prior proceeding and conclude whether that jury could have grounded its verdict upon an issue other than that which the defendant now seeks to foreclose from consideration. Wingate v. Wainwright, 464 F.2d 209, 212 (5th Cir. 1972).

The State argues that the jury in Appellant’s first trial did not decide the issue for which admission of the collateral crime was sought, as it only introduced the .357 found in the grill to corroborate the victim’s identification that he had been robbed by a man wielding a .357. By showing that Appellant might have placed the gun in the grill on March 21, the State argued that Appellant had access to it near the time of the March 3 robbery. We see little difference between access to a gun on March 21 and possession of it on March 21, especially in light of the evidence and testimony presented at both trials.

Considering the entire record  [*5]  of the proceedings in Appellant’s first trial, as we must in order to determine whether the jury determined the ultimate issue for which admission of the gun was sought in the second trial, we conclude that the jury decided the ultimate issue in the first trial. In both trials the State presented evidence that on March 21, Appellant ran past the grill to enter his girlfriend’s apartment, depositing the .357 in the grill; no other evidence was presented to show that he did this at some time other than March 21. The jury found that Appellant did not possess a weapon on March 21. Cf. State v. Wade, 435 So. 2d 898, 899-900 (Fla. 1st DCA 1983) (reasoning that the jury in the appellant’s first trial could have concluded that the appellant armed himself while outside the dwelling in convicting him only for burglary of a dwelling, rather than armed burglary; therefore, the gun could be admitted at a second trial on the felon in possession charge). Accordingly, the trial court abused its discretion in admitting the .357 into evidence.

The State argues that admission of the gun was harmless due to the victim’s unequivocal identification of Appellant. We cannot agree that this evidence was harmless  [*6]  beyond a reasonable doubt, as it corroborated the victim’s testimony that Appellant robbed him with a .357. See Cooper v. State, 778 So. 2d 542, 545 (Fla. 3d DCA 2001); see also State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Accordingly, we reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

POLSTON and HAWKES, JJ., CONCUR.

FREDDRICK HINES, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-4305

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

March 31, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Alachua County. Mary Day Coker, Acting Circuit Judge.

COUNSEL:   Nancy A. Daniels, Public Defender; Steven L. Seliger and M.J. Lord, Assistant Public Defenders, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   THOMAS, J. POLSTON and HAWKES, JJ., CONCUR.

OPINION BY:   THOMAS

OPINION  

THOMAS, J.

Appellant appeals his convictions for robbery with a firearm and actual possession of a firearm by a convicted felon on March 3, 2002. Because the trial court abused its discretion by admitting into evidence Appellant’s alleged possession of a firearm on March 21, 2002, a crime for which he was acquitted, we reverse. We do not consider the other issues Appellant raises, as we find this issue to be dispositive.

Facts and Procedural History

Appellant was arrested on March 21 at his girlfriend’s apartment. That same day a crime scene investigator found a .357 gun in a barbeque grill outside the sliding glass door leading into the back of her apartment.

Appellant proceeded to trial on the following charges: grand theft of an automobile, possession of an illegal shotgun, fleeing in an attempt to elude law enforcement,  [*2]  and possession of a firearm by a convicted felon on March 21, based on both the shotgun found in the trunk of the car he was driving before his arrest and the .357 gun found in the grill. The trial court granted Appellant’s motion for a judgment of acquittal on the charge of felony fleeing in an attempt to elude law enforcement.

The jury convicted Appellant of grand theft and possession of an illegal shotgun. The trial court then directed the jury to consider the charge of felon in possession of a weapon; the jury returned a verdict of not guilty, specifically rejecting that Appellant possessed a weapon either actually or constructively.

Following his acquittal on the possession charge, Appellant filed a motion in limine in the instant case to preclude the State from introducing the .357 found in the grill into evidence in this case. He argued that because he was acquitted, admission of this evidence was prohibited under Perkins v. State, 349 So. 2d 161 (Fla. 1977). The trial court denied his motion.

Appellant then proceeded to trial on the charges of armed robbery and possession of a firearm by a convicted felon which arose out of the March 3, 2003 events. The robbery victim testified  [*3]  at trial, identifying Appellant as the man who robbed him with a .357 on March 3. To show that Appellant had access to a .357 near the time this robbery occurred, the State introduced evidence that a .357 was found in the barbeque grill on March 21. It argued that on March 21, Appellant ran from the scene of a car accident, past the grill, and into his girlfriend’s apartment through the sliding glass door. The State argued that an innocent man would not place a gun inside a barbeque grill. No evidence was presented to suggest that Appellant placed the gun inside the grill at any time other than March 21, the date for which he was acquitted of the possessions charge.

Legal Analysis

A trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. Globe v. State, 877 So. 2d 663, 673 (Fla. 2004).

Appellant argues that evidence of his possession of the .357 shotgun on March 21 was impermissible because he had previously been acquitted of the charge. In Perkins, the supreme court held that evidence of collateral crimes for which a defendant has been acquitted is not admissible in a subsequent trial. 349 So. 2d at 163-64. The Perkins rule, however,  [*4]  precludes evidence of an acquitted collateral crime only when the prior verdict clearly decided in the defendant’s favor the issue for which admission of the collateral crime is sought. Diaz v. State, 609 So. 2d 1337, 1341 (Fla. 3d DCA 1992). When making this determination, a trial court should consider the record of the prior proceeding and conclude whether that jury could have grounded its verdict upon an issue other than that which the defendant now seeks to foreclose from consideration. Wingate v. Wainwright, 464 F.2d 209, 212 (5th Cir. 1972).

The State argues that the jury in Appellant’s first trial did not decide the issue for which admission of the collateral crime was sought, as it only introduced the .357 found in the grill to corroborate the victim’s identification that he had been robbed by a man wielding a .357. By showing that Appellant might have placed the gun in the grill on March 21, the State argued that Appellant had access to it near the time of the March 3 robbery. We see little difference between access to a gun on March 21 and possession of it on March 21, especially in light of the evidence and testimony presented at both trials.

Considering the entire record  [*5]  of the proceedings in Appellant’s first trial, as we must in order to determine whether the jury determined the ultimate issue for which admission of the gun was sought in the second trial, we conclude that the jury decided the ultimate issue in the first trial. In both trials the State presented evidence that on March 21, Appellant ran past the grill to enter his girlfriend’s apartment, depositing the .357 in the grill; no other evidence was presented to show that he did this at some time other than March 21. The jury found that Appellant did not possess a weapon on March 21. Cf. State v. Wade, 435 So. 2d 898, 899-900 (Fla. 1st DCA 1983) (reasoning that the jury in the appellant’s first trial could have concluded that the appellant armed himself while outside the dwelling in convicting him only for burglary of a dwelling, rather than armed burglary; therefore, the gun could be admitted at a second trial on the felon in possession charge). Accordingly, the trial court abused its discretion in admitting the .357 into evidence.

The State argues that admission of the gun was harmless due to the victim’s unequivocal identification of Appellant. We cannot agree that this evidence was harmless  [*6]  beyond a reasonable doubt, as it corroborated the victim’s testimony that Appellant robbed him with a .357. See Cooper v. State, 778 So. 2d 542, 545 (Fla. 3d DCA 2001); see also State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Accordingly, we reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

POLSTON and HAWKES, JJ., CONCUR.

ROBERT MURPHY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2589

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 28, 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 Sarasota County; Andrew D. Owens, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   LaROSE, Judge. WHATLEY and CASANUEVA, JJ., Concur.

OPINION BY:   LaROSE

OPINION  

LaROSE, Judge.

Robert Murphy appeals his conviction and sentence for driving under the influence of alcoholic beverages, third or subsequent conviction, and driving while license suspended, third or subsequent conviction. See §§ 316.193(2)(b)(1), 322.34(2)(c), Fla. Stat. (2005). Mr. Murphy raises five claims, only one of which has merit. The trial court erroneously imposed a no early termination of probation condition. We reverse on that point.

The trial court orally pronounced a sentence of eleven months and twenty-nine days in county jail followed by five years of probation. The written judgment and sentence included the additional condition of no early termination of probation. Mr. Murphy challenged this condition in a motion to correct sentencing error. See Fla. R. Crim. P. 3.800(b)(2). The trial judge denied relief, concluding that Mr.  [*2]  Murphy waived the issue by not objecting at the sentencing hearing. The sentencing transcript reflects, however, that Mr. Murphy could not object earlier because the trial court did not orally pronounce this condition. Therefore, he properly raised and preserved the issue for appeal. See Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So. 2d 1015, 1016, 1017 (Fla. 2000) (stating rule 3.800(b) provides mechanism to correct sentencing error when written sentence deviates from oral pronouncement).

The trial court may not impose a special condition of probation that purports to divest the Department of Corrections (DOC) of its authority to recommend early termination of Mr. Murphy’s probation. n1 See § 948.04(3), Fla. Stat. (2005); Swedish v. State, 724 So. 2d 640, 640 (Fla. 2d DCA 1999); Baker v. State, 619 So. 2d 411, 412 (Fla. 2d DCA 1993). Additionally, the trial court may not prevent the circuit court from exercising its discretion to discharge Mr. Murphy in the future. See § 948.05, Fla. Stat. (1991); Baker, 619 So. 2d at 412.

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This special condition is a substantive error that is correctable on  [*3]  appeal where preserved with a rule 3.800(b)(2) motion. Cf. Ladson v. State, 955 So. 2d 612, 613 (Fla. 2d DCA 2007) (affirming unpronounced, but otherwise proper, special condition of probation raised in rule 3.800(b) motion); Grubb v. State, 922 So. 2d 1002, 1004 (Fla. 5th DCA 2006) (same)).
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The State concedes error. Therefore, we direct the trial court, on remand, to strike the special condition of probation and to correct the sentence and probation order so that the DOC is aware that the special condition no longer exists. We affirm on Mr. Murphy’s remaining claims without further discussion.

Reversed and remanded with directions.

WHATLEY and CASANUEVA, JJ., Concur.

BYRON BURCH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-2832

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

March 28, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

PRIOR HISTORY:    [*1]

3.850 Appeal from the Circuit Court for Hernando County, Jack Springstead, Judge.
Burch v. State, 932 So. 2d 210, 2006 Fla. App. LEXIS 10332 (Fla. Dist. Ct. App. 5th Dist., 2006)

COUNSEL:   Byron K. Burch, Sneads, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, J. PLEUS and SAWAYA, JJ., concur.

OPINION BY:   GRIFFIN

OPINION  

GRIFFIN, J.

Appellant, Bryon Burch ["Burch"], seeks review of the trial court’s summary denial of his rule 3.850 motion for postconviction relief. For the reasons that follow, we conclude that the trial court erred in denying claims one and three without an evidentiary hearing. The trial court did not err in summarily denying ground two.

On November 5, 2004, the State filed an information charging Burch in count I with Robbery With a Deadly Weapon, and in count II with Aggravated Battery With a Deadly Weapon. At trial, Randall Ball ["the victim"] testified that during October 2004, he was homeless and living in the woods near a Family Dollar store. He worked for a day labor agency earning $ 45-$ 50 per day and cashed his checks after work at a nearby Citgo station.

After cashing his check one afternoon, he walked by the Family Dollar store on his way to the woods, where he encountered Burch. The victim had  [*2]  never seen Burch before. Burch asked him if he lived back there by himself, and the victim replied that he did. As the victim continued to walk into the woods, Burch jumped him from behind and they began fighting. Burch put a box cutter to the victim’s throat, but the victim was able to break it. During the struggle, the victim was cut and his blood got onto Burch’s pants. Even though the blade was broken, Burch continued to hold the weapon against the victim’s throat as they fought. At some point, the victim took $ 20.00 out of his pocket and gave it to Burch. After taking the money, Burch told the victim not to follow him or he would get hurt. Burch then left the woods.

The victim walked to the police station and reported what happened to Officer Carter and told him that the person who attacked him had one eye that was totally white. Such an individual was known to Officer Carter. The victim subsequently identified Burch as his assailant.

Burch also testified and gave a very different version of events. He went to the Oaks Motel and purchased crack cocaine, then he ran into Carl O’Neal who had a pipe, so they went to his tent and smoked the crack. While he was at the tent, other people  [*3]  came by, asking if he would sell them a piece, which he did. When he ran out, he went back to the Oaks Motel to buy more and returned to the tent. As he was getting ready to leave yet again to buy more, the victim came by and gave him $ 19.00 to get him some crack. Burch returned to the motel to buy more crack, but the person he was buying it from wasn’t there, so he called someone else who sold drugs and he ordered $ 100.00 worth. The seller later met Burch, and they cut the crack “cookie” into smaller pieces and smoked some marijuana. When he finally returned to the camp, he encountered the victim, who accused him of “ripping him off.” Burch denied the accusation, and as he reached into his pocket to get the victim’s crack, the victim punched him in the face and they started fighting. They wrestled and punched each other for about two minutes until others intervened. They then each went their own way. Burch admitted on examination that he had ten felony convictions, three of which involved dishonesty.

After deliberating, the jury found Burch guilty of the lesser included offenses of robbery and battery. On direct appeal, this Court affirmed. See Burch v. State, 932 So. 2d 210 (Fla. 5th DCA 2006)  [*4]  (table).

In his first claim of ineffective assistance of counsel, Burch contended that defense counsel was ineffective for failing to impeach the victim regarding a prior conviction for “stealing beer from a store one time and steaks.” Burch alleged that this information was testified to by the victim during the victim’s deposition. Burch asserted that such a conviction constituted a crime of dishonesty and should have been used to attack the credibility of the victim at trial. Burch contended that his trial was essentially a “credibility contest” between the victim and himself regarding the events that occurred on the date in question and that the only direct evidence of a robbery was the testimony of the victim. Furthermore, he contended that, because the case boiled down to a credibility contest, the fact that the State was able to introduce evidence of Burch’s numerous prior convictions, but defense counsel did not introduce the victim’s prior conviction, likely tipped the scales in the State’s favor.

The trial court rejected Burch’s claim, reasoning that defense counsel had conducted a competent cross-examination of the victim, which included several efforts to impeach the victim  [*5]  by contrasting the victim’s deposition testimony and trial testimony. However, because the relative credibility of the two men was central to the trial and because the lack of any criminal record on the part of the alleged victim was made a feature of the trial by the state, n1 evidence of Burch’s prior criminality, and the victim’s lack of a criminal record, may have influenced the verdict. The merit or lack of merit of this claim of ineffective assistance requires an evidentiary hearing.

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For example, the State said during closing argument:

And finally, was it proved that the witness had been convicted of a crime. [The victim] has not been convicted of any crimes. Byron Burch has been convicted of ten felonies, three of which involved dishonesty. Who should you believe? You need to look at that.
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In his third claim for relief, Burch contended that defense counsel was ineffective for failing to call Carl Wayne O’Neal ["O'Neal"] as an exculpatory witness on Burch’s behalf. According to Burch’s motion, O’Neal would have testified:

[t]hat he was present during the incident in this case; that [the victim] wanted to chip in on smoking crack cocaine with [Burch], himself and several other individuals,  [*6]  all of whom [the victim] previously known [sic] and dealt with in smoking drugs. Additionally, O’Neal would have testified that [the victim] voluntarily gave money to [Burch] to buy cocaine. Finally, he would have stated that because [Burch] had taken a very long time to return with the drugs, [the victim] assumed that [Burch] ripped him off, which resulted in a fight.In other words, O’Neal would have testified consistent with Burch’s trial defense and contrary to the victim’s trial testimony. The trial court summarily denied Burch’s third claim on the ground that defense counsel’s decision to exclude references to Burch going to buy crack cocaine could hardly be ineffective assistance.

This reasoning fails for at least two reasons: first, Burch’s entire defense was premised on his testimony that he was a crack user/seller who took money to purchase crack for the victim, which led to a fight after Burch had failed to return timely with the crack the victim had given him money to purchase. Second, we do not know whether defense counsel’s decision not to call O’Neal was a trial tactic. If so, this is a determination that usually should be made after an evidentiary hearing. See Pomposello v. State, 940 So. 2d 500, 500 (Fla. 5th DCA 2006).

Accordingly,  [*7]  we affirm in part, reverse in part and remand for an evidentiary hearing on grounds One and Three.

AFFIRMED in part; REVERSED in part; AND REMANDED.

PLEUS and SAWAYA, JJ., concur.

LUIS SANTIN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-471

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

March 28, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Lisa T. Munyon, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   ORFINGER, MONACO and TORPY, JJ., concur.

OPINION  

PER CURIAM.

Following a jury trial, Appellant was convicted of burglary of a structure with an assault or battery, attempted sexual battery and false imprisonment. n1 We find no merit in his challenge to the attempted sexual battery conviction. Accordingly, that conviction is affirmed. We do find merit, however, in one of Appellant’s arguments pertaining to the burglary conviction. We conclude that the court committed fundamental error when it instructed the jury on a theory not charged in the information. Accordingly, we reverse the conviction on the burglary count and remand for a new trial.

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The trial court dismissed the false imprisonment conviction on double jeopardy grounds.
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The State charged Appellant with burglary under the theory that Appellant had remained in a structure with the intent to commit a forcible felony therein pursuant to  [*2]  section 810.02(1)(b)2.c., Florida Statutes (2006). The material portions of the information provided:

Luis A. Santin . . . did, in violation of Florida Statutes 810.02(1)(b)2.c. and 810.02(2)(a), enter or remain, without license or invitation, in a portion of a structure, located in the vicinity of 39 W. Pine Street, to wit: the ladies’ restroom, in the County and State aforesaid . . . with the intent to commit or attempt to commit a forcible felony as defined in Florida Statues 776.08, and in the course of committing said offense, Luis A. Santin did make an assault or battery upon [the victim].(Emphasis added).

The court’s instruction permitted the State to argue that the jury could find Appellant guilty if he “had a fully-formed conscious intent to commit an offense in that structure.” This theory of criminal responsibility is based on section 810.02(1)(b)1., Florida Statutes (2006), a theory not charged in the information. Based on the instruction, the prosecutor did indeed argue a theory not charged. The prosecutor argued:

So applying the law to these facts, we have a burglary of a structure with an assault or battery therein. Structure. You have different compartments like we talked  [*3]  about. The ladies’ room is not open to the male public. The locked stall door is not open to anybody but the person using that stall. He entered into that stall with the intent to at least commit a battery against her, and that’s how it’s charged, the burglary. Entering or remaining in that portion of the structure with the intent to commit a battery. Now, of course, much more was intended, but the bottom line was, he intended to unlawfully touch her in some manner.

. . . .

Now, the burglary verdict and the burglary instructions are a little confusing, but, again, when you break it down to the elements of the burglary charge, did he enter that bathroom or that locked stall with the intent to commit a battery against her? Yes. When you break down burglary, it’s that simple.

By giving an instruction on an alternative theory not charged, the court committed fundamental error. Garzon v. State, 939 So. 2d 278, 287 (Fla. 4th DCA 2006); Hodges v. State, 878 So. 2d 401 (Fla. 4th DCA 2004); Taylor v. State, 760 So. 2d 298 (Fla. 4th DCA 2000); Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, MONACO and TORPY, JJ., concur.

STEVIE R. ROBINSON a/k/a STEPHEN R. ROBINSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-4092

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 28, 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 Sarasota County; Andrew D. Owens, Jr., Judge, and Stephen L. Dakan, Senior Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SALCINES, Judge. KELLY and LaROSE, JJ., Concur.

OPINION BY:   SALCINES

OPINION  

SALCINES, Judge.

Stevie R. Robinson entered a plea of no contest to drug and weapon charges while reserving the right to appeal the denial of his dispositive motion to suppress. As we conclude there was no probable cause for the search which resulted in the seizure of a firearm and marijuana, we reverse.

Evidence Presented to the Trial Court

At the motion to suppress hearing, Sarasota Police Officer Ronald Dixon testified that he and three other police officers conducted a “walk-through” in a parking lot behind a nightclub. The officer explained that a “walk-through” involves law enforcement officers walking through a public area to “make sure everything is on the up-and-up, no problems.” On the evening in question there had been no complaints about any activity at the location; however, the parking  [*2]  lot was described as a “problem area” known for public drinking, narcotics, and fights.

The officers observed four individuals standing near a car in an unlit, back portion of the parking lot. As the officers approached, three of the individuals started to walk away. One individual, later identified as Robinson, did not move away but remained leaning against the rear of the car. Officer Dixon testified that the police officer walking immediately in front of him informed his fellow officers that he could smell marijuana. When Officer Dixon was within ten or fifteen feet of the car, he also could smell a strong odor of burned marijuana. Officer Dixon conceded that as he approached he did not see any individual smoking marijuana nor could he smell the odor of marijuana coming from any particular individual. He reported, “It was like a cloud hanging over them,” but he could not recall actually observing any smoke.

Each of the officers approached one of the four individuals. Officer Dixon testified that as he approached Robinson he did not smell the odor of marijuana on Robinson’s person. When asked for identification, Robinson cooperated and supplied it. It was determined that Robinson had  [*3]  no outstanding warrants. However, Officer Dixon testified that at this point Robinson was not free to leave. Based on the odor of burned marijuana, Officer Dixon had resolved to search Robinson to see if he was in possession of marijuana. No testimony was presented that Officer Dixon suspected Robinson was in possession of a weapon or that he thought a pat-down search for officer safety was necessary.

Officer Dixon asked Robinson for consent to search. Robinson initially consented. However, when Officer Dixon informed Robinson that he needed to turn around for the search, Robinson responded, “No, you can search me right where I am.” The officer testified that he believed Robinson refused to move because he was hiding marijuana behind his back. Officer Dixon then ordered Robinson to turn around, and Robinson reluctantly complied.

During the pat-down search, Officer Dixon observed a bulge in Robinson’s back pocket. When he felt the pocket, the officer immediately recognized the object was metal in the shape of a gun. The weapon was seized. After Robinson’s arrest, a further search revealed marijuana in Robinson’s front pants pocket.

Motion to Suppress

Robinson filed a motion to suppress  [*4]  in which he argued that he had not consented to the search of his person and that the generalized odor of marijuana did not justify a search of all the individuals in the parking lot. He claimed that without a particularized odor of marijuana on a specific individual located in a public place, the officers did not have reasonable suspicion or probable cause to search.

In response, the State argued that when officers approach a group of individuals and an odor of marijuana cannot be attributed to any one of them, there is probable cause to search all the individuals to see if any of them are in possession of marijuana. The State cited to Green v. State, 831 So. 2d 1243 (Fla. 2d DCA 2002), to support its argument. n1

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In fact, the Green opinion supports Robinson’s motion to suppress. The facts in Green are similar to those involved in the present case in that Green was not observed to be engaged in any criminal activity:

Here, Officer Schantz specifically observed that the smoke was coming from [co-defendant] Mr. Brown, that he and [co-defendant] Mr. Cooper discarded the marijuana cigar and the baggie containing marijuana, and that Mr. Green was simply standing with them. Green did and  [*5]  said nothing that gave the officers probable cause to believe that Green possessed illegal drugs or that he was armed or dangerous so as to justify a pat-down. Because the officers had no basis to search Green, the search and subsequent seizure of the contraband from him were illegal and the evidence that was confiscated should have been suppressed.Green, 831 So. 2d at 1245-46 (emphasis added, citations omitted). Nothing gave the officer probable cause to justify a pat-down search of Green or the subsequent seizure of contraband because there was no basis for the search. Id. at 1245-46. The denial of Green’s motion to suppress was reversed. In the case before us, Robinson, like Green, was not observed to have been involved in any direct criminal activity because Officer Dixon did not perceive the odor of marijuana on his person, and Robinson was merely standing in an area where the odor of burned marijuana was present.
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In denying the motion, the trial court was not persuaded by the State’s argument. Instead, it noted that Robinson admitted that the odor of marijuana was in the air and held that the marijuana odor gave the officers “some reasonable suspicion to at least approach.” The  [*6]  trial court found that Robinson’s consent to search had been withdrawn. However, it determined that when Robinson originally consented to be searched but refused to turn around, the officer’s reasonable suspicion was “heightened.” It concluded that the officer surmised Robinson was hiding marijuana “and I think [the refusal to turn around] increased his reasonable suspicion, which makes it in the area of the stop issue which I think makes it a legitimate search, so I deny the motion.”

Law Enforcement Encounters

There are three levels of law enforcement encounters: (1) a consensual encounter, (2) an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (3) an arrest. Golphin v. State, 945 So. 2d 1174, 1180 (Fla. 2006), cert. denied, 128 S. Ct. 40, 169 L. Ed. 2d 11 (2007). A consensual encounter involves only minimal law enforcement contact, and a citizen may either voluntarily comply with a law enforcement officer’s requests or choose to ignore them. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). A law enforcement officer may reasonably detain a citizen temporarily for an investigatory stop if the officer has a reasonable suspicion that a person has committed, is committing, or is  [*7]  about to commit a crime. Id.; see § 901.151, Fla. Stat. (2005) (”Florida Stop and Frisk Law”). An investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough. Popple, 626 So. 2d at 186; Newkirk v. State, 964 So. 2d 861, 863 (Fla. 2d DCA 2007). During an investigatory stop the officer may temporarily detain the individual to ascertain his or her identity and the circumstances surrounding the person’s presence at the location which led to the officer’s suspicions. § 901.151(2). An arrest at any time after the investigatory stop is permissible if supported by probable cause that a crime has been or is being committed. § 901.151(4); Popple, 626 So. 2d at 186.

Consensual Encounter

In the instant case, when the officers first observed the men standing in the public parking lot, there was no suspicion of any criminal behavior. Officer Dixon testified that the officers determined they would engage in a consensual encounter with the men. The trial court concluded that the actions of the police officers in approaching the men constituted a valid consensual citizen’s encounter.

Probable Cause

When a law enforcement officer has validly stopped  [*8]  an individual, he may conduct a pat-down search if the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person. § 901.151(5). In the present case, there was no testimony that Officer Dixon believed Robinson was armed or posed a threat to anyone.

An officer also may conduct a warrantless search of an individual when there is probable cause to arrest. Blake v. State, 939 So. 2d 192, 197 (Fla. 5th DCA 2006). It is the probability, and not a prima facie showing, of criminal activity that is the standard when reviewing a finding of probable cause to arrest an individual. Simmons v. State, 934 So. 2d 1100, 1114 (Fla. 2006). The totality of the circumstances must be considered. Id. However, the State has the burden to prove that the officer had probable cause, and the proof must be more than the “naked subjective statement of a police officer who has a ‘feeling’ based on ‘experience’ that the accosted citizen is committing a crime.” Coney v. State, 820 So. 2d 1012, 1014 (Fla. 2d DCA 2002) (quoting Doctor v. State, 596 So. 2d 442, 445 (Fla. 1992)). An officer’s mere suspicion that a person is carrying illegal  [*9]  drugs is insufficient to supply probable cause for a search. State v. Witherspoon, 924 So. 2d 868, 871 (Fla. 2d DCA 2006).

Another manner to uphold a warrantless search of an individual is when there has been a voluntary consent to the search. V.H. v. State, 903 So. 2d 321, 322 (Fla. 2d DCA 2005). However, once an individual consents to a search, he or she has the right to withdraw that consent. Smith v. State, 753 So. 2d 713, 715 (Fla. 2d DCA 2000); Williams v. State, 727 So. 2d 1050, 1052 (Fla. 2d DCA 1999). When an individual revokes his or her previously given consent, that consent cannot thereafter act as the basis for upholding a further search. E.B. v. State, 866 So. 2d 200, 203 (Fla. 2d DCA 2004) (holding search illegal because at the moment E.B. withdrew his consent by his nonverbal conduct, the officer did not have information sufficient to meet the probable cause requirement to further detain E.B.).

In the present case, the trial court noted that there was no evidence that Officer Dixon believed Robinson was armed, but the officer thought Robinson was concealing marijuana. The trial court concluded, as a matter of law, there was sufficient probable cause for the officer to  [*10]  search Robinson based on the odor of burned marijuana in the air and Robinson’s action of withdrawing his consent to search. As a review of the above-stated law establishes, this determination was erroneous.

Conclusion

We conclude that there was no probable cause to support the warrantless search of Robinson’s person which yielded the firearm and the marijuana. The fact that Robinson was standing with a group of men surrounded by the odor of burned marijuana was insufficient to supply more than a “mere suspicion” that Robinson was in possession of marijuana. The fact that Robinson initially consented to a search of his person and then withdrew that consent did not give the officer probable cause to search for marijuana.

Accordingly, we reverse the denial of the motion to suppress and the resulting judgments and sentences for felon in possession of a weapon, carrying a concealed weapon, and possession of marijuana.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.

T.J.N., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-673

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

March 28, 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 Charlotte County; Paul Allessandroni, Acting Circuit Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   CANADY, Judge. ALTENBERND and VILLANTI, JJ., Concur.

OPINION BY:   CANADY

OPINION  

CANADY, Judge.

T.J.N. appeals a trial court order requiring him to pay restitution in the amount of $ 1910 for damage he caused to a truck in connection with the commission of two batteries for which he was adjudicated. We conclude that T.J.N. is liable for the damage he caused to the truck but that the trial court improperly relied on hearsay testimony in establishing the amount of restitution. We therefore reverse the order as to the amount of restitution and remand for further proceedings.

I. Liability for Restitution

T.J.N. first argues that he is not liable for restitution because there was no causal connection between the battery offenses for which he was adjudicated and the damage to the truck. He contends that there was no evidence that he caused the damage while committing the batteries. In support of  [*2]  his position, T.J.N. relies on our decision in G.C. v. State, 944 So. 2d 1099, 1099 (Fla. 2d DCA 2006), which reversed a restitution award because the “State failed to prove a nexus” between the juvenile’s offenses and the victim’s loss. For the reasons we will explain, we conclude that the reasoning of G.C. does not apply to the circumstances presented by the instant case.

The general statute governing restitution awards, section 775.089, Florida Statutes (2006), n1 provides in part:

(1)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:

1. Damage or loss caused directly or indirectly by the defendant’s offense; and

2. Damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution.”The Florida Supreme Court has explained that restitution awards must be based on ‘both a “but for” causation requirement and a “significant relationship” requirement.’ ” G.C., 944 So. 2d at 1100 (quoting Schuette v. State, 822 So. 2d 1275, 1282 (Fla. 2002)).

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The statute concerning powers of disposition in juvenile delinquency cases which was in effect at the time of T.J.N.’s offenses  [*3]  provides that a trial court may “order the child to make restitution . . . for any damage or loss caused by the child’s offense.” § 985.231(1)(a)(6), Fla. Stat. (2005); cf. § 985.437(2), Fla. Stat. (2006) (containing similar provisions and enacted in 2006 but not effective until January 1, 2007, after the date of the offenses in this case). The supreme court has treated the juvenile restitution provisions similarly to the general restitution statute, see Schuette v. State, 822 So. 2d 1275, 1281 n.5 (Fla. 2002), and this court has applied the general restitution statute to juvenile cases, see G.C., 944 So. 2d at 1100. T.J.N. does not argue that the juvenile statute–which appears to provide a narrower authorization for restitution awards–applies over the general statute. In fact, T.J.N. cites the general statute as applying to this case.
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At the restitution hearing, the State presented testimony from the owner of the truck, Shane Lowe, that during the fight in which the offenses occurred, T.J.N. was fighting on and around the front and right sides of Lowe’s truck. Lowe testified that prior to the fight, his truck was not damaged and that the fighting caused damage to the right side of  [*4]  his truck. Specifically, Lowe observed T.J.N. push someone up against the truck, punch the truck with his fist, and hit the truck with a bat. Another witness testified that T.J.N. “was up and down [the truck] the whole time, hitting it and getting shoved into it and he was shoving that kid into it.” She saw T.J.N. swing a bat at someone and the bat “hit the . . . back of the truck on the right side.” T.J.N. pleaded no contest to committing battery on two victims, Matt Lucia and Derek Arminger, and the State nolle prossed two counts of battery against Lowe and Jonathan Ricewick. Lowe testified that T.J.N. was fighting with Derek Arminger, the victim of one of the pleaded-to counts, on the front side of the truck, but Lowe was unable to identify the person T.J.N. was fighting with on the right side of the truck where all of the claimed damage occurred. Lowe and another witness testified that T.J.N. was not fighting with Matt Lucia on the right side of the truck. Therefore, the State did not prove that the right-side damage was caused by the batteries for which T.J.N. was adjudicated. See § 775.089(1)(a)(1) (providing for restitution for “[d]amage or loss caused directly or indirectly  [*5]  by the defendant’s offense”). The State did, however, prove that the damage was related to T.J.N.’s criminal episode. See § 775.089(1)(a)(2) (providing for restitution for “[d]amage or loss related to the defendant’s criminal episode”).

In G.C., 944 So. 2d at 1099, the juvenile was charged with trespass on property, burglary of a conveyance, and grand theft of an all-terrain vehicle (ATV) from the property. Pursuant to a negotiated plea agreement, the State nolle prossed the grand theft charge and the juvenile pleaded no contest to trespass on the property and trespass of a conveyance, a lesser-included of the burglary charge. “The State sought restitution for the loss of the [ATV], which was apparently never recovered.” Id.

This court held that “[b]y pleading no contest to trespass” of the ATV, G.C. only admitted to entering or remaining in it without permission, that “[h]e did not admit to grand theft[] and [that] in the plea deal the State abandoned that charge without securing G.C.’s agreement to pay restitution for the victim’s loss occasioned by the theft of the [ATV].” Id. at 1100. The court went on to conclude:

Therefore, to obtain a restitution award for the loss of the vehicle,  [*6]  the State had to show that the loss would not have occurred but for the trespass. Because the State failed to prove the causation or nexus between G.C.’s trespass and the victim’s loss, we reverse the restitution order.Id. (citations omitted).

In G.C., the State did not prove that the loss of the ATV was caused by the pleaded-to offense of trespass. The State also failed to prove that the loss of the ATV was related to G.C.’s criminal episode. This court in G.C. recognized that restitution can be awarded for damages related to the defendant’s criminal episode but ultimately concluded that the State had not proved the requisite nexus. G.C. is therefore distinguishable on this evidentiary basis from the instant case. See also Davis v. State, 741 So. 2d 1213 (Fla. 2d DCA 1999) (holding that restitution was improper where theft of jewelry was not related to offense of attempted burglary and where there was no indication that State presented evidence that theft of the jewelry was part of the defendant’s criminal episode).

Since the State proved at the restitution hearing that the damage to the right side of the vehicle was caused by T.J.N. during the criminal episode involving the two batteries  [*7]  to which T.J.N. pleaded, we affirm the trial court’s ruling that T.J.N. was responsible for restitution for damage to the right side of the truck.

II. Hearsay Evidence

T.J.N. further claims that the trial court erred in basing the amount of restitution on hearsay testimony from Lowe’s insurance adjustor. T.J.N. is correct.

“When the amount of restitution is in dispute, . . . the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim’s loss.” Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991). Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence. Id.

When testimony concerning the estimated cost of repairs to damaged property is “offered in evidence to prove the truth of the matter asserted,” it is “hearsay” unless “made by the declarant while testifying at the trial or hearing.” § 90.801(1)(c), Fla. Stat. (2006). n2 The “declarant” of the estimate is the person who was responsible for making the estimate. Accordingly,

in dealing with estimates it is imperative that we distinguish between a witness['s] merely stating from hearsay what someone else has said  [*8]  the damages might be and an individual who is qualified to provide an expert opinion of the fair market value of the cost of repairs to the damaged property.In re M.C.L., 110 S.W. 3d 591, 595 (Tex. App. 2003); see Williams v. State, 850 So. 2d 627, 628 (Fla. 2d DCA 2003) (reversing restitution award which was based on hearsay evidence from the prosecutor regarding estimates for repair of a vehicle); Craft v. State, 769 So. 2d 1096, 1097 (Fla. 2d DCA 2000) (reversing restitution award because it was based on hearsay testimony from the victim regarding estimate for repairs to her vehicle); see also Atkins v. State, 728 So. 2d 288, 289 (Fla. 2d DCA 1999) (reversing restitution award because it was based on testimony from a witness who “testified directly from information gathered and provided by two subordinates”); Moore v. State, 694 So. 2d 836, 837 (Fla. 2d DCA 1997) (reversing restitution order because testimony of the State’s witnesses “was based on information they received from an accountant who did not testify and on their examination of documents and records that were not produced at the restitution hearing”).

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“Written opinions or estimates may qualify as a business record exception  [*9]  to the hearsay rule under section 90.803(6), Florida Statutes (2006), if production of estimates is a regularly conducted business activity.” Butler v. State, 970 So. 2d 919, 920-21 (Fla. 1st DCA 2007).
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The State presented the testimony of the insurance adjustor regarding the estimated cost of repairs to the damage on the right side of the truck. During cross-examination, the insurance adjustor revealed that he was basing his testimony on an estimate he had received from an auto body shop. T.J.N. objected to the consideration of the hearsay testimony regarding the amount of damages. No competent evidence was presented concerning the amount of the damages. Accordingly, the trial court had no basis for determining the restitution amount and T.J.N. is entitled to a new hearing concerning the amount of restitution.

III. Conclusion

We affirm the trial court’s determination that T.J.N. is liable for restitution, but we reverse the trial court’s determination concerning the amount of restitution. The case is remanded for a new hearing concerning the amount of restitution.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and VILLANTI, JJ., Concur.