Florida Criminal Law Opinions

Bill McCollum, Attorney General; Meredith Charbula and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee; Alton O. Paulk, Assistant State Attorney, Panama City, for Appellant.

Robert S. Sombathy of Isler, Sombathy & Sombathy, P.A., Panama City, for Appellee.

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An appeal from the Circuit Court for Bay County. Dedee S. Costello, Judge.

PER CURIAM.

The State appeals the trial court’s two orders granting the defendant’s motion to suppress any evidence obtained as a result of his allegedly unlawful

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arrest. The State argues that, based on the totality of the circumstances, the officers had probable cause to arrest the defendant at the time he was taken into custody. We agree and reverse.

I. Facts

The relevant facts are largely undisputed. In the early morning hours of April 4, 2009, Kelly Jo Holley was shot in a residence in the Derby Woods subdivision in Lynn Haven, Florida. At approximately 1:20 or 1:30 a.m., while walking his dog in the subdivision, Oliver Schmidt observed a navy blue or black BMW drive past him and park in an odd location in the subdivision. The location was a couple hundred feet, maybe less, from the residence where Holley was shot. The man exited the BMW, spoke briefly to Schmidt, shut his door, and walked away. Schmidt continued walking down the street a couple of blocks and eventually lost sight of the BMW.

Schmidt then heard a gunshot. A couple seconds later, he called 911. Maybe a minute or two later, while still on the phone, he heard a vehicle start up and speed down the street. The sounds were coming from the direction where the BMW had been parked. When he reached a point where he could see the vehicle, Schmidt saw a navy blue or black sporty vehicle speed out of the subdivision and head west on Highway 390. He could not positively identify the vehicle as the BMW.

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While en route to the scene, Lieutenant David Ward was told that there was a shot fired in the subdivision and a dark colored vehicle was seen fleeing from the subdivision and heading west on Highway 390. Based on that information, he put out a BOLO for a black sporty vehicle heading west on Highway 390. When he arrived at the scene, he discovered that a shot was fired from outside the residence into the front bedroom and Holley had been shot in the back. There were at least four other individuals in the residence at the time of the shooting, including Stephanie Pugh, who lived at the residence, but no one saw the shooter. When Lieutenant Ward asked the occupants who could have fired the shot, Pugh threw out the defendant’s name as a possible suspect because he was Holley’s former boyfriend and had been allegedly harassing and/or stalking Holley. When she heard that a black BMW had been involved, she told Lieutenant Ward that the defendant drove a black BMW. After confirming that Schmidt had seen a BMW, Lieutenant Ward updated the BOLO for a black BMW heading west on Highway 390 and the defendant as the driver.

About 15 minutes after Lieutenant Ward arrived on the scene and about a minute after the updated BOLO went out, Deputy Trey Stanford spotted a black BMW heading west on Highway 390, about four or five miles from the scene and proceeded to pull the vehicle over. He called the tag in and was told that the tag came back to the defendant. When Deputy Stanford made contact, the driver

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identified himself as the defendant. At 1:54 a.m., Deputy Stanford detained the defendant, handcuffing him and placing him in the back of his patrol car as a suspect in the shooting. At 2:00 a.m., Deputy Stanford transported the defendant to the Sheriff’s Office for questioning and the vehicle was impounded. The vehicle was subsequently searched.

At 4:20 a.m., at the Sheriff’s Office, Schmidt identified the defendant’s vehicle as the vehicle he saw parked in the subdivision. Sometime before 10:52 a.m., the defendant was transported to jail. At 12:00 p.m., Investigator Mitch Pitts wired the attorney visitation room where he hoped to secretly record a conversation between the defendant and his mother during their visit. The defendant made incriminating statements to his mother regarding the shooting.

The defendant was later charged with aggravated battery with a firearm and shooting into an occupied dwelling. He filed a motion to suppress any evidence seized from his vehicle, Schmidt’s identification of his vehicle, and his statements to his mother. He argued that, when he was transported to the Sheriff’s Office, it amounted to a de facto arrest without probable cause and any evidence obtained as a result of that unlawful arrest was subject to suppression. The State took the position that the officers had probable cause to arrest the defendant at the time he was taken into custody. Following a suppression hearing, the trial court entered an order granting the portion of the defendant’s motion seeking suppression of any

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evidence seized from his vehicle and Schmidt’s identification of his vehicle and a subsequent order granting the portion of the defendant’s motion seeking suppression of his statements to his mother.

II. Analysis

In Pagan v. State, the Florida Supreme Court stated:

[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. The reviewing court is bound by the trial court’s factual findings if they are supported by competent, substantial evidence. The trial court’s determination of the legal issue of probable cause is, however, subject to the de novo standard of review.

830 So. 2d 792, 806 (Fla. 2002) (citations omitted).

A warrantless arrest must be supported by probable cause. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (identifying the third level of police-citizen encounters as arrests supported by probable cause). To establish probable cause, the State must demonstrate that an officer had reasonable grounds to believe that the arrestee committed the crime. See Blanco v. State, 452 So. 2d 520, 523 (Fla. 1984) (“The probable cause standard for a law enforcement officer to make a legal arrest is whether the officer has reasonable grounds to believe the person committed a felony.”); § 901.15(2), Fla. Stat. (2009) (providing that an officer may arrest a person without a warrant when a felony has been committed and he or she

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reasonably believes that the person committed it). The existence of probable cause is not based on a formulaic determination, but rather on the probability of criminal activity. See Doorbal v. State, 837 So. 2d 940, 952-53 (Fla. 2003).

In the instant case, at the time the defendant was pulled over, the officers had the following information. A navy blue or black BMW parked near the residence shortly before the shooting. A man exited the BMW and walked away. Gunshots were heard and a navy blue or black sporty car sped out of the subdivision and headed west on Highway 390. The defendant was Holley’s former boyfriend, had allegedly been harassing and/or stalking Holley, and drove a black BMW. Within half an hour of the shooting, the defendant was pulled over four or five miles from the residence driving a black BMW. Based on the totality of the circumstances, the State clearly demonstrated that the officers had reasonable grounds to believe that the defendant shot the victim. Consequently, the officers had probable cause to arrest the defendant at the time he was taken into custody.

Accordingly, we reverse the trial court’s orders granting the defendant’s motion to suppress the evidence obtained as a result of his arrest.

REVERSED.

THOMAS, ROBERTS, and MARSTILLER, JJ., CONCUR.

Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee; James Owens, Public Defender, Pensacola, and Julie Edwards, Assistant Public Defender, Milton, for Appellant.

Bill McCollum, Attorney General, Natalie D. Kirk, Assistant Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

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An appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge.

BENTON, J.

On direct appeal of convictions and concurrent sentences—five years in prison for failing to report a change in address in violation of section 943.0435(9), Florida Statutes (2007), and eleven months 29 days in jail for giving a false name

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to a law enforcement officer in violation of section 901.36(1), Florida Statutes (2007)—Fredis Espinal Torres maintains the trial court erred in convicting him after a bench trial, in the absence of a valid waiver of his right to trial by jury. We reverse and remand for a new trial.

The Florida Constitution provides that the “right of trial by jury shall be secure to all and remain inviolate.” Art. I, § 22, Fla. Const. The Florida Constitution also gives the accused in a criminal case the right to “a speedy and public trial by impartial jury.” Art. I, § 16, Fla. Const. The Sixth Amendment to the United States Constitution, likewise applicable in state criminal trials by virtue of the Fourteenth Amendment, also guarantees the accused’s right to trial by jury. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968). To be sure, as with other constitutional rights, as long as certain requirements are met, the right to trial by jury can be waived. See generally Johnson v. Zerbst, 304 U.S. 458, 464 (1938). “An effective waiver of a constitutional right must be knowing, voluntary, and intelligent. A defendant may waive the right to a jury trial, provided that the waiver appears on the record.” State v. Upton, 658 So. 2d 86, 87 (Fla. 1995) (citation omitted).

But the requirements for waiver were not met here. The criminal rule concerning waiver of trial by jury provides: “A defendant may in writing waive a

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jury trial with the consent of the state.” Fla. R. Crim. P. 3.260. Our supreme court has ruled nevertheless that no writing is necessary, see, e.g., Morris v. State, 680 So. 2d 544, 545 (Fla. 1st DCA 1996) (“a valid waiver may be made orally”), saying however:

[I]t is better practice for trial courts to use both a personal on-the-record waiver and a written waiver. An appropriate oral colloquy will focus a defendant’s attention on the value of a jury trial and should make a defendant aware of the likely consequences of the waiver. If the defendant has been advised by counsel about the advantages and disadvantages of a jury trial, then the colloquy will serve to verify the defendant’s understanding of the waiver. Executing a written waiver following the colloquy reinforces the finality of the waiver and provides evidence that a valid waiver occurred. Because the waiver of a fundamental right must be knowing and intelligent, the above-stated practice better promotes the policy of recognizing only voluntary and intelligent waivers.

Tucker v. State, 559 So. 2d 218, 220 (Fla. 1990). The record in the present case contains neither a written waiver nor an oral waiver in open court. “For a waiver of the right to jury trial to be valid, a waiver form must be signed by the defendant or the defendant must orally waive that right after a proper colloquy with the trial court.” Racine v. State, 16 So. 3d 955, 956 (Fla. 5th DCA 2009).

At the bench trial, the record is devoid of any mention of waiver of the right to a jury trial. The cases are clear that mere failure to object to a bench trial does

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not constitute a valid waiver of the right to trial by jury, even where the defendant remains silent following counsel’s oral waiver purportedly on behalf of the defendant. See Sansom v. State, 642 So. 2d 631, 632 (Fla. 1st DCA 1994). See also Zerbst, 304 U.S. at 464 (“It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’” (citations omitted)). Waiver will not be presumed from a record silent on the subject. ^*

A valid oral waiver requires adequate inquiry of the accused on the record. An appropriate inquiry “will focus a defendant’s attention on the value of a jury trial and should make a defendant aware of the likely consequence of the waiver.” Blair v. State, 698 So. 2d 1210, 1214 (Fla. 1997) (citing Tucker, 559 So. 2d at 220). The inquiry must also demonstrate that the waiver is free and knowing, voluntary and intelligent. When trial counsel in Morris v. State, 680 So. 2d 544 (Fla. 1st DCA 1996), moved ore tenus for a non-jury trial, the defendant indicated

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on the record that he agreed with the request, and the trial court granted the request for a bench trial. On appeal from the ensuing conviction, we reversed because the trial court “did not make the requisite inquiry into the knowing, intelligent, and voluntary nature of the waiver.” 680 So. 2d at 545 (“In the instant case, the waiver of jury trial was made orally by appellant’s counsel in appellant’s presence, and appellant orally affirmed. The court, however, did not make the requisite inquiry into the knowing, intelligent, and voluntary nature of the waiver. Accordingly, the cause is reversed and remanded.”). In the present case, too, we reverse and remand for a new trial. The error has not been shown to be harmless, and the State has not argued otherwise. See generally Johnson v. State, 994 So. 2d 960, 965 (Fla. 2008).

Reversed and remanded.

THOMAS and ROWE, JJ., CONCUR.

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Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

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An appeal from the Circuit Court for Escambia County. W. Joel Boles, Judge.

PER CURIAM.

The appellant, Shawn Wayne Elliot, appeals his judgment and sentence for second-degree murder. He argues on appeal that the trial court fundamentally erred by failing to specifically instruct the jury that the State had the burden to

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prove beyond a reasonable doubt that the killing was not an act of justifiable or excusable homicide. We reject this argument for the reasons that follow and affirm.

The appellant was charged by indictment with the premeditated murder of Ira Dixon. The State’s theory was that the appellant, fueled by alcohol and drugs and the fact that Dixon was hitting on his girlfriend, intentionally shot and killed Dixon. The appellant’s only defense was that the State did not prove beyond a reasonable doubt that a crime was committed or that he was the one who committed the crime.

The State provided the jury instructions and the defense had the opportunity to review and make any objections. Without objection, the trial court instructed the jury on first-degree murder as well as the lesser crimes of second-degree murder and manslaughter. The trial court also gave the jury the standard instructions on excusable and justifiable homicide and on burden of proof. The jury found the appellant guilty of the lesser-included offense of second-degree murder.

By not objecting to the jury instructions at trial, the appellant failed to preserve this issue for appellate review. See State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991). On appeal, the appellant argues the jury instructions constituted

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fundamental error. This Court reviews the issue of unpreserved fundamental error under the de novo standard. See Beckham v. State, 884 So. 2d 969, 970 (Fla. 1st DCA 2004).

Fundamental error is error which reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” See Delva, 575 So. 2d at 644-45 (quotation omitted). In the context of jury instructions, fundamental error occurs only when an omission is pertinent or material to what the jury must consider in order to convict. See Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982).

The crux of the appellant’s fundamental error argument relies on the fact that the failure to instruct the jury on a disputed element of a charged offense constitutes fundamental error. See Reed v. State, 837 So. 2d 366 (Fla. 2002) (finding the failure to use correct definition of malice in standard jury instruction for aggravated child abuse was fundamental error, where the element of malice was disputed at trial). See also Delva, 575 So. 2d at 644-45. However, the appellant’s reliance on Reed and Delva is misplaced because excusable and justifiable homicide are not elements of the offense at issue; rather, they have the effect of legally excusing the defendant from an act that would otherwise be a criminal offense. Furthermore, this Court recently found no error where the jury

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was not specifically instructed that the State had the burden to disprove selfdefense beyond a reasonable doubt. See Mosansky v. State, 33 So. 3d 756, 758-59 (Fla. 1st DCA 2010) (holding that where a challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is so flawed as to deprive defendants claiming the defense of a fair trial).

In the instant case, the instructions read to the jury without objection included a direction that the State must prove its case beyond a reasonable doubt as well as the instruction on justifiable or excusable homicide. The jury instructions explicitly stated the State had the burden of proving the crime and that the defendant did not have to prove anything. Thus, there was no reason for the jury to think a different standard applied to the instruction on justifiable or excusable homicide. As in Mosansky, “the instructions, taken as a whole, clearly, comprehensively, and correctly instructed the jury on the state’s burden of proof.” Id. See also Bolin v. State, 297 So. 2d 317, 319 (Fla. 3d DCA 1974) (“A conviction will not be reversed because a particular jury instruction has not been given where, on the whole, the charges as given are clear, comprehensive, and correct.”).

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Moreover, the appellant failed to demonstrate that he was deprived of a fair trial. The alleged error did not “permeate or saturate the trial with such basic invalidity” as is required to find fundamental error. See Brown v. State, 124 So. 2d 481, 484 (Fla. 1960).

Accordingly, we affirm the appellant’s judgment and sentence.

AFFIRMED.

THOMAS, ROBERTS, and MARSTILLER, JJ., CONCUR.

Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

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An appeal from the Circuit Court for Jackson County. William L. Wright, Judge.

PER CURIAM.

Danny T. Jackson appeals his judgment and sentence for second degree murder arguing that Montgomery v. State, 35 Fla. L. Weekly S204 (Fla. April 8, 2010), approving Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA

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February 12, 2009), requires reversal because the jury was given the then-existing standard instruction on manslaughter by act which imposed upon the jury the requirement to find that the defendant intended to kill the victim. Subsequent to Montgomery, in Joyner v. State, 35 Fla. L. Weekly D1515 (Fla. 1st DCA July 7, 2010), this court relied upon its previous decision in Salonko v. State, 35 Fla. L. Weekly D376 (Fla. 1st DCA February 12, 2010), and ruled that fundamental error does not occur even if the jury was given the erroneous manslaughter by act instruction if the jury was also instructed on manslaughter by culpable negligence giving the jury the option of finding the appellant guilty of a lesser included offense which did not require an intent to kill. As in Joyner and Salonko, even though the erroneous instruction on manslaughter by act was given, the jury in this case was given the option of finding manslaughter by culpable negligence. We are bound to follow our decisions in Joyner and Salonko. See also Singh v. State, 36 So. 3d 848 (Fla. 4th DCA 2010); Cubelo v. State, 35 Fla. L. Weekly D1245 (Fla. 3d DCA June 2, 2010).

AFFIRMED.

HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., CONCUR.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Orange County, Jose R. Rodriguez, Judge.

PER CURIAM.

Luis Arrascue appeals his convictions for two counts of lewd and lascivious molestation of a child. Only one argument merits discussion, and that issue is not preserved for appellate review.

As his first issue on appeal, Arrascue argues that the trial judge erred by improperly limiting his cross-examination of the victim. Arrascue is correct that a

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criminal defendant has an absolute right to conduct a full and fair cross-examination of the witnesses called by the State. Docekal v. State, 929 So. 2d 1139, 1142 (Fla. 5th DCA 2006). This right “is especially necessary when the witness being cross-examined is the key witness on whose credibility the State’s case relies.” Id. (quoting Tomengo v. State, 864 So. 2d 525, 530 (Fla. 5th DCA 2004)). Generally, a trial court reversibly errs by prohibiting cross-examination “when the facts sought to be elicited are germane to that witness’ testimony and plausibly relevant to the theory of defense.” Id. (quoting Bertram v. State, 637 So. 2d 258, 260 (Fla. 2d DCA 1994)).

At trial in this case, the State had sought to introduce “William’s Rule”¹ evidence from another alleged child victim. The trial court ruled that the State could not use this evidence unless Arrascue “opened the door” to its admission through cross-examination of the victim. Yet, defense counsel could not get a definitive response from the trial court as to what cross-examination, if pursued, would open the door for admission of the State’s proffered evidence. The trial judge indicated that he would need to hear the testimony to make that assessment. Rather than proffer the desired cross, and secure a definitive ruling, counsel simply elected to forgo his desired cross as to a number of topics. Because defense counsel did not proffer his cross-examination outside of the presence of the jury, we have no way of knowing how the trial court would have addressed the issue given questions that might (or might not) have been asked and responses that might (or might not) have been given. Additionally, we have no way to assess whether the contemplated cross-examination would have made any difference in the outcome. See, e.g., Finney v. State, 660 So. 2d 674, 684 (Fla. 1995) (rejecting

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defendant’s claim that trial court improperly limited cross-examination as unpreserved where defendant failed to proffer testimony he sought to elicit and the substance of such testimony was not apparent from the record). As stated in Finney: “Without a proffer it is impossible for the appellate court to determine whether the trial court’s ruling was erroneous and if erroneous what effect the error may have had on the result.” Id. Although the record does contain some very generalized statements about the nature of the abandoned cross-examination, it does not contain enough information to permit meaningful appellate review as to this issue.

AFFIRMED.

ORFINGER, LAWSON and JACOBUS, JJ., concur.

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James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner

Bill McCollum, Attorney General, Tallahassee, Florida, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, Florida, for Respondent

PER CURIAM.

James Richard Cooper seeks review of the decision of the Second District Court of Appeal in Cooper v. State, 13 So. 3d 147 (Fla. 2d DCA 2009), on the grounds that it expressly and directly conflicts with the decision of this Court in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).¹

Cooper was convicted of four counts of sexual battery on a person in familial custody and two counts of lewd molestation for his sexual abuse of a single victim over a period of years. Cooper v. State, 13 So. 3d 147, 148 (Fla. 2d DCA 2009). On appeal, the Second District concluded that the trial court erred in

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allowing the State to present evidence that Cooper engaged in extensive, ongoing abuse of the victim when Cooper was charged with only six single counts of sexual misconduct.² Id. at 148-49. The Second District then performed a harmless error analysis, citing but not using the standard set forth by this Court in DiGuilio:

As to whether the error of allowing the State to present evidence of extensive abuse did or did not contribute to the verdict, we note that if the case had been presented as six distinct acts as charged, the State’s presentation of its case would have necessarily been different. On the other hand, the jury heard a taped statement where Cooper admitted engaging in sexual acts with the victim. Because the taped statement is strong evidence of Cooper’s guilt, we conclude that the error of allowing the State to present evidence of multiple sexual acts did not affect the verdict and was harmless in this case. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Cooper, 13 So. 3d at 149 (emphasis added).

Although the Second District cited DiGuilio, it failed to follow the DiGuilio standard when it relied on what it deemed the “strong evidence of Cooper’s guilt.” Id. As we have explained, the applicable test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.” DiGuilio, 491 So. 2d at 1139. Likewise, it is not a strong evidence test. Rather, the test is “whether there is a reasonable possibility that the error affected the verdict.” Id; see also Ventura v. State, 29 So. 3d 1086, 1091 (Fla. 2010) (quashing

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and remanding a district court’s decision when the harmless error analysis focused on overwhelming evidence of guilt because it “does not address a proper [DiGuilio] analysis and does not discuss whether there is a reasonable possibility that the… error affected the verdict”).

Accordingly, we quash and remand to the Second District for reconsideration of the harmless error analysis enunciated in DiGuilio.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

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Application for Review of the Decision of the District Court of Appeal-Direct Conflict of Decisions

(Polk County)

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Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

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

FISHMAN, JANE D., Associate Judge.

Appellant Shelby Adderly was convicted as charged of two counts of robbery with a deadly weapon, two counts of aggravated assault on a person sixty-five years of age or older, and one count of burglary of an occupied conveyance with assault or battery, and was sentenced to life in prison. Because the trial court improperly admitted evidence that four months after the crimes herein Appellant gave the police a false name and ran, we reverse and remand for a new trial.

The facts material to this appeal are as follows. On October 11, 2007, Eleanor Levine and Marvin Reiner were returning to Ms. Levine’s car after dinner at a restaurant in West Palm Beach. Ms Levine noticed a black man wearing red pants or shorts on the street. After she entered her car, but before closing the car door, a man pointed a gun at her. During the course of the robbery, the man’s face was very close to Ms. Levine’s face, the car was parked under a street lamp, and the car’s interior light was on. Ms. Levine surrendered her purse to the man, and Mr. Reiner gave the man his wallet. The man fled, and Ms. Levine and Mr. Reiner returned to the restaurant to call the police.

Deputy Mendenhall responded to the call and Ms. Levine told the deputy that she believed the robber was the man she had seen walking outside the restaurant, that he was a black man wearing a dark hat and shirt and red pants or shorts. Ms. Levine and Mr. Reiner remained at the scene at the deputy’s request while she issued a BOLO and called for a police dog. Within several minutes Appellant was apprehended by another officer, and Deputy Mendenhall drove Ms. Levine and Mr. Reiner

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to the scene of the apprehension to see if they could identify the suspect. When they arrived, the location had been barricaded off, multiple police cars were present, along with television crews, lights, and cameras from the television show COPS, which was filming these events. Appellant was handcuffed near an ambulance, and multiple police officers were in the area wearing helmets and vests, and carrying assault rifles.

Mr. Reiner was uncertain if Appellant was the robber because the robber had been wearing a hat. However, when Deputy Mendenhall showed Mr. Reiner a hat that had been found near Appellant, he identified Appellant as the robber. Ms. Levine immediately identified Appellant as the robber, once she was brought near enough to see him. She later asked the police if Appellant had done this before, and was told that Appellant had a record. In addition, she later researched Appellant on the internet.

Appellant moved to suppress the out-of-court identifications and to preclude any in-court identifications.¹ After a hearing, the trial court ruled that Ms. Levine’s out-of-court identification was admissible, finding that, although the show-up procedure was suggestive, there was no substantial likelihood of irreparable misidentification, and an in-court identification did not have to be precluded as tainted. Ms. Levine did indeed identify Appellant at trial.

In addition to other evidence adduced at trial, the state proffered testimony of Deputy Mark Lanier that on February 9, 2008, four months after Appellant’s arrest for this incident, Lanier came in contact with Appellant on the street, and that Appellant gave the deputy a false name and ran from him. Over Appellant’s objection, and over the trial court’s own stated concern that the evidence was attenuated, the trial court nevertheless permitted the testimony to be presented to the jury. On cross examination, Deputy Lanier testified that Appellant had been taken to jail on the night of his arrest, that Appellant remained in jail for thirty days without the state filing charges, and that Appellant was then released from jail. Deputy Lanier also admitted that Appellant told him he ran because he had a warrant out for him and he did not want to go to jail that day. The state argued to the jury that this was evidence of flight relevant to Appellant’s consciousness of guilt of this robbery and assault, even though the warrant was for the separate felony offense of failure to appear in court, albeit on this offense.

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Appellant first claims that the trial court erred in denying his motion to suppress the identification made by Ms. Levine, arguing that the outof-court identification was unduly suggestive and that there was no sufficient independent basis to validate the in-court identification. It is well settled that a show-up, such as took place here, is inherently suggestive because a witness is presented with only one suspect for identification. Perez v. State, 648 So. 2d 715, 719 (Fla. 1995); Blanco v. State, 452 So. 2d 520, 524 (Fla. 1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985); Anderson v. State, 946 So. 2d 579, 581 (Fla. 4th DCA 2006). However, a show-up is not invalid if it does not give rise to a substantial likelihood of irreparable misidentification given the totality of the circumstances.

The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). In the instant case, the identification of Appellant by Ms. Levine was made very shortly after the crime, with no hesitation. During the assault, Levine and her assailant were close to each other, and, while it was nighttime, the interior car lights were on and the car itself was parked directly beneath a street light.

The trial court considered all those factors, along with others, and ruled that the show-up identification was admissible because it did not give rise to a substantial likelihood of irreparable misidentification. As this court has previously held, the decision to admit a pre-trial identification is within the sound discretion of the trial court, and may be overturned only upon a showing of an abuse of that discretion. Anderson, 946 So. 2d at 581; Walker v. State, 776 So. 2d 943, 945 (Fla. 4th DCA 2000). The trial court here did not abuse its discretion in admitting the identification testimony.

Appellant also claims error in the admission of evidence that he gave a false name and ran from a police officer four months after this crime. Evidence of flight is admissible as being relevant to infer consciousness of guilt only where sufficient evidence exists to establish that the defendant fled to avoid prosecution of the charged offense. Escobar v. State, 699 So. 2d 988, 995 (Fla. 1997), abrogated on other grounds by Connor v. State, 803 So. 2d 598 (Fla. 2001); Merritt v. State, 523 So. 2d 573, 574 (Fla. 1988). The fact that a defendant has committed more

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than one crime within a short period of time does not preclude introduction of the evidence of flight, provided a sufficient evidentiary nexus exists to permit a jury to reasonably infer consciousness of guilt of the offense on trial from the flight. Hertz v. State, 803 So. 2d 629, 644 (Fla. 2001); Escobar, 699 So. 2d at 995; see also Bundy v. State, 471 So. 2d 9, 21 (Fla. 1985). The determination of whether the state has established a sufficient nexus to introduce evidence of flight is made on the particular facts of each case. Thomas v. State, 748 So. 2d 970, 982 (Fla. 1999).

In Merritt, the Florida Supreme Court concluded that the evidence of flight was erroneously introduced because the flight occurred three years after the crime. 523 So. 2d at 574. Similarly, in Escobar, that court concluded that evidence of flight was inadmissible because it occurred in another state twenty-seven days after the murder at issue and the defendant had no reason to believe he was a suspect in that murder at the time of the flight. 699 So. 2d at 996. On the other hand, in Bundy, the supreme court concluded that the evidence of flight was properly introduced where the flight occurred only several days after the victim disappeared. 471 So. 2d at 21. In Straight v. State, 397 So. 2d 903 (Fla. 1981), and in Shellito v. State, 701 So. 2d 837, 840-41 (Fla. 1997), the defendants used deadly force against officers and fled from the officers within a few days of the murders for which those defendants were on trial. In both cases, the supreme court concluded that flight was properly admitted as relevant to consciousness of guilt. And in Thomas, the court found that a substantial nexus to the charged murder was established and that the trial court had not abused its discretion in admitting evidence of the defendant’s flight in a high-speed chase eleven days after the murder for which the defendant was on trial. In Virgo v. State, 931 So. 2d 1010, 1012-13 (Fla. 4th DCA 2006), this court found no abuse of discretion where the trial court admitted testimony of the defendant’s flight four days after the robbery for which he was on trial, even though his flight could also have been attributed to another robbery that Virgo might have committed just before the flight occurred. A sufficient nexus to the charged crime was established there because the evidence showed that Virgo used the same truck, the same gun, and wore the same clothes in both the robberies, which were conducted identically, just a few days apart.

In the instant case, however, we conclude that the state failed to present sufficient evidence to establish that Appellant’s flight was reasonably due to this crime, or established consciousness of guilt of the crimes for which he was on trial. The flight was four months after Appellant’s arrest for these charges, and three months after Appellant’s

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release from custody on these charges, after the state had failed to timely file any charges against Appellant. In addition, Appellant told the officer that he fled because he knew there was a warrant out for his arrest for failure to appear in court. Under these circumstances, the evidence was simply not relevant to any issue at trial. Thus, the trial court abused its discretion in admitting the evidence and permitting the state to argue to the jury that it could infer that Appellant’s giving of a false name and running from the officer was evidence of his consciousness of guilt of the offenses for which he was on trial.

Nor can we say that the error here was harmless beyond a reasonable doubt. As noted earlier, the show-up which resulted in the out-of-court identification of Appellant was inherently suggestive and a close call for the trial court on whether the suggestiveness of the identification resulted in a substantial likelihood of irreparable misidentification. While the totality of the circumstances did not establish that the trial court abused its discretion in admitting the identification testimony, we are unable to say, beyond a reasonable doubt, that the erroneous admission of the evidence of flight did not improperly contribute to Appellant’s convictions of these charges. Because we cannot say that the error was harmless beyond a reasonable doubt, State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), we reverse and remand for a new trial.

Reversed and remanded.

Gross, C.J., and Warner, J., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case No. 502007CF014681AXX.

Not final until disposition of timely filed motion for rehearing.

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Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Mark King Leban, Judge.

Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.

COPE, J.

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The defendant, Ariez Marrero, appeals his convictions in a sexual battery case. Counts one through four were sexual battery. For each act of sexual battery, the defendant was convicted of two crimes: one count of armed sexual battery on a person twelve years of age or older, ¹ and one count of sexual battery on a familial child while armed.²

At sentencing the State requested that the court adjudicate the defendant guilty on counts three and four but not counts one and two. The State expressed concern that there might be a double jeopardy issue. The State explained that the information charged the same act in count one and three, and the same act in counts two and four. The trial court stated, “I don’t know that I agree with that legally, but if that’s the [State's] request I’ll adhere to it.” The court orally adjudicated the defendant guilty on counts three and four, as well as count five. The court imposed concurrent life sentences on counts three and four, and a concurrent thirty-year sentence on count five.³

Although the court had ordered that there would be no adjudication on counts one and two, the written judgment erroneously adjudicated the defendant guilty on counts one and two. The written sentencing order was consistent with the

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oral pronouncement, that is, it accurately recorded the orally pronounced sentences on counts three through five.⁴ No sentence was imposed on counts one and two.

On this appeal, the defendant argued that the adjudications on counts one and two violated double jeopardy principles. We do not need to reach that issue. The trial court’s oral pronouncement was that the defendant was not to be adjudicated guilty on counts one and two. We therefore strike the adjudication of guilt on counts one and two. Having done so, the double jeopardy question is moot.

Affirmed as modified.

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James C. Banks of the Law Firm of Banks & Morris, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.

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

An appeal from the Circuit Court for Alachua County. David A. Glant, Judge.

BENTON, J.

Darren Clark appeals his conviction for “strong arm” robbery, arguing that the trial court erred in failing to instruct the jury on the lesser-included offense of “robbery by sudden snatching.” Because the information charged all of the elements of “robbery by sudden snatching” and because some evidence supported

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each element of this immediately lesser-included offense, the failure to give the defendant the jury instruction he requested was “error that is per se reversible.” Reddick v. State, 394 So. 2d 417, 418 (Fla. 1981). Accordingly, we reverse and remand for a new trial.

Appellant was charged with and convicted of “strong arm robbery, “¹ in violation of section 812.13, Florida Statutes (2008). The information alleged that he “did take A PURSE AND CONTENTS THEREIN INCLUDING A WALLET AND A RING… from the person or custody of [the victim], with intent to either permanently or temporarily deprive the person or the owner of the said property, and in the course of the taking did use force, violence, assault, or putting in fear, contrary to Section 812.13(2)(c), Florida Statutes.” The robbery victim was a college student walking to her apartment when Mr. Clark grabbed her purse, throwing her to the ground. She sustained scratches in the scuffle, two of her sweater buttons came off, and her watchband broke. Evidence of each element of robbery, including each prong of the disjunctive “force, violence, assault, or putting in fear” element, was plainly sufficient. On the basis of the victim’s testimony, the jury would have been well justified in convicting the defendant of

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“strong arm robbery” on the theory—specifically pertinent here—that the victim had been put in fear. Appellant does not argue otherwise.

But he contends he was entitled to the jury instruction defense counsel below requested on the permissive or category two lesser-included offense of “robbery by sudden snatching,” the third-degree felony proscribed by section 812.131, Florida Statutes (2008). In connection with permissive lesser-included offenses, our supreme court has said:

Upon request, a trial judge must give a jury instruction on a permissive lesser included offense if the following two conditions are met: “(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.” Jones v. State, 666 So. 2d 960, 964 (Fla. 3d DCA 1996) (citing Brown v. State, 206 So. 2d 377, 383 (Fla.1968)). We recently reiterated this longstanding rule of law by stating that “[a]n instruction on a permissive lesser included offense is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser offense.” Williams v. State, 957 So. 2d 595, 599 (Fla. 2007) (emphasis added).

Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2008). See also Garcia v. State, 976 So. 2d 676, 678 (Fla. 2d DCA 2008) (holding that, “upon proper request, a trial court not only is justified but is required to give a jury instruction on a permissive lesser included offense when the information specifically alleges all the statutory

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elements of the lesser offense and the evidence presented at trial supports the lesser offense”); Moore v. State, 932 So. 2d 524, 527 (Fla. 4th DCA 2006).

The prosecution, as well as the defense, has the right to jury instructions on lesser-included offenses. See State v. Johnson, 601 So. 2d 219, 220 (Fla. 1992); Williams v. State, 957 So. 2d 595, 599 (Fla. 2007) (“If an offense meets the criteria for an instruction and verdict choice as either a necessarily or permissive lesser included offense, the State may insist on its inclusion, even over defense objection.”). At issue here is a category two, not a category one, lesser-included offense. (In the case of a category one, necessarily lesser-included offense, ² the very definition of the primary offense subsumes the elements of the necessarily lesser-included offense, an offense which is by definition committed whenever the primary offense occurs. See Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006); State v. Paul, 934 So. 2d 1167, 1175 (Fla. 2006).) “It is reversible error for a trial court to deny a requested instruction on the next lesser-included offense of the one

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charged, even if it is category two, if the charging instrument and the evidence admitted would support a conviction on the next lesser offense.” Moore v. State, 932 So. 2d at 527 (boldface omitted).

“Robbery by sudden snatching” is a permissive³ or category two lesserincluded offense of “strong arm robbery,” and it is officially listed as such. See Id. (“The schedule of lesser included offenses is designed to be a complete, authoritative compilation that is presumed to be correct and upon which a trial court can confidently rely.”); see also Fla. Std. Jury Instr. (Crim.) 15.1 (2009). Because the information against him charged that Mr. Clark committed the offense of robbery by taking the victim’s purse from her person or custody by, among other things, “putting [her] in fear,” the information alleged all the statutory elements not only of the offense of “strong arm robbery” but also of the offense of

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“robbery by sudden snatching.”⁴ The allegation that a robbery was accomplished by putting the victim in fear necessarily alleges that the victim “in the course of the taking,… was or became aware of the taking.” § 812.131(1), Fla. Stat. (2008).

Instructions on completed, ⁵ lesser-included offenses are required despite ample evidence of the primary, more serious offense. A trial court must charge the

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jury on a permissive, lesser-included offense “even though the evidence adduced at trial establishing this lesser offense also establishes the charged offense.” Jones v. State, 666 So. 2d 960, 965 (Fla. 3d DCA 1996). See also, e.g., Amado v. State, 585 So. 2d 282, 283 (Fla. 1991) (holding the trial court committed reversible error in refusing the requested instruction on simple drug possession in a case in which the charge was trafficking cocaine, even though “the evidence was overwhelming that the amount of drugs involved in this transaction exceeded twenty-eight grams”).⁶ “Whether the evidence is susceptible of inference by the jury that the

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defendant is guilty of a lesser offense than that charged is a critical evidentiary matter exclusively within the province of the jury.” State v. Bruns, 429 So. 2d 307, 309-10 (Fla. 1983).

When requested, the trial court must instruct on all permissive, lesser-included offenses except for “any lesser included offense as to which there is no evidence.” Fla. R. Crim. P. 3.510(b). See Amado, 585 So. 2d at 282-83 (“An instruction on a permissive lesser included offense should be precluded only where ‘there is a total lack of evidence of the lesser offense.’” (citation omitted)). This is so “because the jury is privileged… to exercise its de facto pardon power and acquit the defendant on the charged offense, but convict the defendant on the lesser offense.” Jones v. State, 666 So. 2d at 965.

[D]espite their suspect pedigree, jury pardons have become a recognized part of the system; so much so that, in direct appeals, “[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.” Reddick [v. State], 394 So. 2d [417,] 418 [(Fla. 1981)]. Such a standard is appropriate on direct review because “it would be difficult for an appellate court to conclude beyond a reasonable doubt that a jury in a particular case, given the opportunity, would not disobey the law and grant a pardon.” Sanders [v. State], 847 So. 2d [504,]

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507 [(Fla. 1st DCA 2003)] (quoting Hill [v. State], 788 So. 2d [315,] 319 [(Fla. 1st DCA 2001)]).

Sanders v. State, 946 So. 2d 953, 959 (Fla. 2006). See Riley v. State, 25 So. 3d 1, 4 (Fla. 1st DCA 2008), rev. dis., 26 So. 3d 1288 (Fla. 2009), (Wolf, J., concurring) (“Although regularly criticized, the concept of a ‘jury pardon’ seems to remain firmly entrenched in Florida law, at least insofar as it relates to determining whether an error is per se reversible on direct appeal.”); see also Boland v. State, 893 So. 2d 683, 686 (Fla. 2d DCA 2005) (reversible error not to give requested instruction on next lesser-included offense); Applewhite v. State, 874 So. 2d 1276, 1279 (Fla. 5th DCA 2004) (same); Overway v. State, 718 So. 2d 308, 310 (Fla. 5th DCA 1998) (same).

Where a trial judge instructs the jury on the next lesser-included offense, but fails to instruct on an offense two steps removed, the jury has been given a fair opportunity to exercise its inherent pardon power by returning a verdict of guilty as to the next lower crime, even though it is error not to instruct on all lesser-included offenses. See State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978). But the trial court’s refusal, as here, to instruct the jury on the lesser-included offense next below the offense of which the defendant was convicted “constitutes error that is per se reversible.” Reddick, 394 So. 2d at 418.

Reversed and remanded.

PADOVANO, J., CONCURS; WOLF, J., CONCURS WITH OPINION.

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WOLF, J., Concurring.

Existing law requires me to concur. If I were writing on a clean slate, however, I would affirm for the reasons expressed in my concurring opinion in Riley v. State, 25 So. 3d 1 (Fla. 1st DCA 2008), review dismissed, 26 So. 3d 1288 (Fla. 2009). Based upon the evidence presented, no reasonable juror could have found that this robbery took place without force. The appellant did not challenge that the robbery took place through the use of force but testified that he was not the perpetrator. While it was error not to give an instruction on the lesser included offense of robbery by snatching, I am convinced beyond a reasonable doubt that it was harmless. Nonetheless, I am constrained to concur in the majority opinion reversing the conviction.

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Tannebaum Weiss and Brian Tannebaum; H. Scott Fingerhut, for appellant.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge.

Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, J.

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The appellant appeals from a twelve year sentence for organized fraud under Section 817.034(4)(a)(1), Fla. Stat., committed pursuant to a scheme to defraud Miami-Dade County by purloining gasoline stocks at the International Airport. The sentence was imposed pursuant to a cooperation agreement in which the Schneir agreed to testify truthfully against his co-defendants in return for a guilty plea to the first degree felony, the dropping of other charges, and the imposition of a two-year sentence. If he violated the agreement, however, he could be sentenced up to the maximum of thirty years although the prosecution was free to recommend a lesser sentence. Although it is undisputed that he materially breached the agreement by repeatedly lying under oath in his pre-trial deposition, Schneir contends on appeal that he was nonetheless entitled to receive the two years on the assertion that the contract was modified to his benefit by “mutual agreement” with the State if, as he did, he thereafter testified for the State at trial.¹ Applying the principles of contract law which are applicable to the issue, see State v. Frazier, 697 So. 2d 944, 945 (Fla. 3d DCA 1997), we find no merit to this contention, which amounts to the unacceptable claim that he was entitled to the same lenient sentence whether he violated the contract or not-that, in other words, no bad deed should go unrewarded.

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Simply put, the alleged “modification” is, for a variety of reasons, ineffective as a matter of law:

First, it is clear that the parties, the defendant and the State, never came close to a meeting of the minds as to the terms of the modification-thus rendering the “contract” relied upon not only “unenforceable,” but in reality not a contract at all. In the case of the prosecution in particular, its alleged representation, upon which Schneir relies on appeal, that he would be given “one last chance” if he testified, falls far short of a binding undertaking for a two year sentence². See 11 Fla. Jur. 2d Contracts §§ 19, 22, 23, 207, 227 (2003). See O’Neil v. Corp. Trustees, Inc., 376 F.2d 818 (5th Cir. 1967); Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985). The fact that he may have unilaterally intended or thought that if he testified at the trial he would receive the two years is plainly insufficient.³

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Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957) (“The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing but on their having said the same thing.”) (citations omitted).

Second, even if an understanding that the State would, in essence, forgive the breach had been established, any such promise would have been unenforceable. This is because, like an initial contract, a modification or novation requires lawful consideration for its validity. See New Kirk Construction Corp. v. Gulf County, 366 So. 2d 813 (1st DCA 1979); 11 Fla. Jur. 2d Contracts §207 (2003). The only performance, however, even allegedly required of him by the “modification” was that Schneir testify truthfully at the trial. But he was obligated to do just that by the express terms of the original contract he had already broken-as well as by the obligation imposed on any citizen. It is well settled that a promise to perform what one is already required to do by an existing contract or otherwise is not valid consideration. F.L. Stitt & Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927); Slattery v. Wells Fargo Armored Service Corp., 366 So. 2d 157 (Fla. 3d DCA 1979); 11

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Fla. Jur. 2d Contracts § 89 (2003). As we have recently held, this rule applies directly to a purported modification or novation. See Davidpur v. Counne, 972 So. 2d 891, 892 (Fla. 3d DCA 2007) (“Counne presented no evidence at trial of any addition action she promised to do as consideration for the modification which she was not already bound to do. In light of these facts, Counne failed to prove her affirmative defense that there was a binding oral contract to modify….”); See also Blair v. Howard, 144 Fla. 121, 198 So. 80, 81 (1940).

We find no merit in the other arguments presented.

Affirmed.

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