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.

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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.

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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).
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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.

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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.

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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.

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