Florida Criminal Law Opinions

Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Giselle Denise Lylen, 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 Suwannee County. David W. Fina, Judge.

BENTON, J.

On direct appeal of his sentence, James David Cregg contests the denial of the motion to correct sentencing error he filed under Florida Rule of Criminal

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Procedure 3.800(b)(2), asserting that he is entitled to additional credit (a total of 217 days instead of the 143 days he was awarded) for time he was incarcerated before trial. We affirm.

Mr. Cregg was “arrested” for dealing in stolen property and grand theft on April 1, 2008, even though he was then in the custody of the Department of Corrections (DOC) serving a prison sentence for conviction(s) on unrelated charge(s): Local law enforcement authorities filed an arrest warrant arising out of the new charges—not a mere hold or detainer, see generally Gethers v. State, 838 So. 2d 504, 505 (Fla. 2003)—with DOC on that date.

On November 3, 2008, after his transfer to county jail, Mr. Cregg entered a plea of guilty to the new charges and was sentenced, in accordance with a written plea agreement that did not specify the amount of credit for jail time that he would receive, to 32 months’ imprisonment followed by five years on probation. The trial court awarded him 143 days’ credit for time he had spent in the Suwannee County Jail before sentencing. Almost all 143 days postdated expiration of the prison sentence.

Citing Gethers and Johnson v. State, 932 So. 2d 300, 301 (Fla. 2d DCA 2006) (stating that “a defendant may be entitled to jail credit while he is serving a prison sentence on another charge”), Mr. Cregg asserts entitlement to credit for 217 days—the entire period between the date DOC received the arrest warrant and

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the date he was sentenced on the new charges. See generally Crompton v. State, 728 So. 2d 1188, 1189 (Fla. 1st DCA 1999) (“The failure to award jail credit for time served before sentencing constitutes an illegal sentence.”).

We note initially that the statute on credit for pretrial detention speaks of jail time, not prison time: Section 921.161(1), Florida Statutes (2008), requires the sentencing court to “allow a defendant credit for all of the time she or he spent in the county jail before sentence.” On the other hand, our supreme court has held that it is within the sentencing court’s “inherent discretionary authority to award credit for time served in other jurisdictions,” as well as in a Florida county jail. Kronz v. State, 462 So. 2d 450, 451 (Fla. 1985) (“[T]he trial judge should consider the appropriateness of an award of credit for time served when the defendant was incarcerated in another state solely because of the Florida offense for which he or she is being sentenced.”). The same rationale would support a discretionary award of credit for time spent in a Florida prison solely because of the distinct offense for which the prisoner was being sentenced.

But here, even after it received the arrest warrant, DOC did not hold Mr. Cregg solely on the new charges, and the trial court did not order that his new sentence be served concurrently with the prison sentence. The prison sentence had, indeed, already expired before the new sentence was imposed. We have said:

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If convicted of multiple offenses, the defendant must be given credit only on the first of consecutive sentences. When consecutive sentences are imposed, “the defendant ‘is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’” Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986) (emphasis omitted) (quoting Martin v. State, 452 So. 2d 938, 938-39 (Fla. 2d DCA 1984)). See also Bell v. State, 573 So. 2d 10, 11 (Fla. 5th DCA 1990). On the other hand, when a defendant is entitled to presentence jail-time credit against concurrent sentences, jail time must be credited against each concurrent sentence. See Daniels, 491 So. 2d at 545.

Barnishin v. State, 927 So. 2d 68, 71 (Fla. 1st DCA 2006). Mr. Cregg’s sentences were consecutive. Since his first sentence had been served by the time the second sentence was pronounced, the trial court’s silence cannot be interpreted to require that the sentences be served concurrently. See generally Ransone v. State, 20 So. 3d 445, 448 (Fla. 4th DCA 2009), rev. granted, 26 So. 3d 582 (Fla. 2010).

Mr. Cregg has failed to demonstrate that he did not get credit for each day he served attributable to the new charges. His situation can be compared to that of the defendant in Hardenbrook v. State, 953 So. 2d717 (Fla. 1st DCA 2007), a probationer from Bay County arrested in Baker County on new charges for which he was sentenced to jail in Baker County. While incarcerated in Baker County, the defendant was “arrested” in the Bay County case for violating probation. When his Baker County sentence expired, he was transported to Bay County, where his

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probation was revoked and he was (re)sentenced in the Bay County case. Analogously to appellant’s claim, Hardenbrook claimed that he was entitled to credit against the Bay County sentence for the time that he was incarcerated in Baker County after he was served with the Bay County arrest warrant. We rejected this claim, holding that he was not entitled to credit against the Bay County sentence for the time served on the Baker County offense. See Hardenbrook, 953 So. 2d at 719. But see Tharpe v. State, 744 So. 2d 1256 (Fla. 3d DCA 1999).

In the present case, too, sentence was imposed after another sentence had expired. When a consecutive sentence is pronounced, the defendant is not entitled to credit for time served on an antecedent sentence. See Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986); Dawson v. State, 816 So. 2d 1123, 1123 (Fla. 1st DCA 2002) (“A defendant is deemed to be in custody on separate warrants from different counties, and therefore entitled to jail credit on both convictions unless the defendant receives consecutive sentences[.]” (emphasis supplied)). Because Mr. Cregg’s sentences were consecutive, in the sense that the later sentence did not begin before the earlier sentence had ended, he is entitled to credit on the second sentence only for those days he was incarcerated after his original sentence expired. The record reflects that he received at least that much credit.

Affirmed.

THOMAS and ROWE, JJ., CONCUR.

Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Lunar Claire Alvey, 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, Julio Jimenez, Judge.

Before SUAREZ, CORTINAS, and SALTER, JJ.

SUAREZ, J.

The defendant, Juan Delgado, appeals a statutory ten-year minimum mandatory sentence for two counts of armed robbery with a firearm. We affirm

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the conviction and sentence on each count of armed robbery including the ten-year minimum mandatory for actually possessing a firearm in violation of section 775.087(2), Florida Statutes (2005).

The defendant contends on appeal that, because the charging information does not necessarily include Delgado as possessing a firearm in the commission of the robbery, the information is not specific enough to support the application of the ten-year minimum mandatory enhancement. We disagree.

An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. Fla. R. Crim. P. 3.140; State v. Dilworth, 397 So. 2d 292 (Fla. 1981); Bradley v. State, 971 So. 2d 957 (Fla. 5th DCA 2007), approved, 3 So. 2d 1168 (Fla. 2009). “The test for granting relief based upon a defect in the charging document is actual prejudice.” State v. Gray, 435 So. 2d 816, 818 (Fla. 1983).

Juan Delgado and a codefendant were charged in one information with committing two counts of armed robbery with a firearm or destructive device in violation of sections 812.13(2)(A), 775.087 and 777.011, Florida Statutes (2005), as follows:

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COUNT 1

ROLANDO PEREZ and JUAN ELIECER DELGADO, on or about June 30, 2007, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, take certain property, to wit: PURSE and/or JEWELRY and/or CREDIT CARDS and/or CELLULAR TELEPHONE, said property being the subject of larceny, and of the value of more than three hundred dollars ($300.00), the property of MARIA ZALDIVAR, as owner or custodian, from the person or custody of MARIA ZALDIVAR, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

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COUNT 2

And the aforesaid Assistant State Attorney, under oath, further information makes ROLANDO PEREZ and JUAN ELIECER DELGADO, on or about June 30, 2007, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, take certain property, to wit: JEWELRY, said property being the subject of larceny, and of the value of less than three hundred dollars ($300.00), the property of JOSE ZALDIVAR, as owner or custodian, from the person or custody of JOSE ZALDIVAR, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

Section 775.087(2), Florida Statutes (2005) states that a person convicted of a felony, who, during the commission of the felony, “actually possess[es] a firearm or destructive device… shall be sentenced to a minimum term of imprisonment of 10 years.” To enhance a defendant’s sentence by means of a statute containing a minimum mandatory, the information must clearly charge the grounds for enhancement. See State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992). Here, the caption of the information designates Rolando Perez as the “A” defendant and Juan Delgado as the “B” defendant. Defendants “A” and “B” are listed under Counts 1 and 2, showing that Counts 1 and 2 charge both defendants with the possession of

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a firearm in the commission of the robbery. The robbery with a firearm charges therefore apply to both defendants.

The text of the information refers to both defendants by name, and charges that “said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat.” The phrase, “said defendant,” likewise applies to both defendants since, under Florida law, the singular form of a phrase includes the plural form. In this case, the phrase, “said defendant,” includes the phrase, “said defendants.” § 1.01, Fla. Stat. (2009) (“In construing the statutes in each and every word, phrase or paragraph, where the context will permit: (1) the singular includes the plural and vice versa.”). Therefore, the minimum mandatory provisions of section 775.087(2) apply to both defendants. The information sufficiently alleges the essential elements of armed robbery, adequately advises the defendant of the charges against him, see Price v. State, 995 So. 2d 401 (Fla. 2008), and is sufficiently clear to charge the grounds for enhancement. See § 775.087(2), Fla. Stat. (2005); Rodriguez, 602 So. 2d at 1270.

A jury found Juan Delgado guilty of two counts of armed robbery. The trial judge sentenced Delgado to twenty years in prison with a ten-year minimum mandatory for the actual possession of a firearm followed by twenty-years

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probation.¹ The jury heard testimony from one of the victims that each assailant had a gun. Delgado defended on grounds that he was not at the scene of the robbery and did not have a gun. Without defense objection, the jury was instructed on armed robbery, including the charge for principals. Defense counsel even acknowledged that the jury would be charged with the responsibility of deciding if Delgado actually possessed a firearm. Again, without objection, verdict forms with blanks to indicate if a firearm was actually possessed were submitted for each defendant. On the verdict form for Juan Delgado, the jury found that Juan Delgado was guilty of robbery with a firearm and that he actually possessed a firearm. On the verdict form for the codefendant, the jury found that Rolando Perez was guilty of robbery with a firearm but that he did not actually possess a firearm. There was no objection to the form or to the verdict. Delgado was convicted of two counts of armed robbery and found to have been in actual possession of a firearm.

There was no question that the defendant knew he was being charged with actual possession of the firearm based on his defense. The jury’s specific finding of actual possession negates Delgado’s defense that he was not at the scene and did not have a gun. The specific finding by the jury of actual possession demonstrates that the evidence fully supported the charges against Delgado. Moreover, defense

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counsel acquiesced in the jury instructions, the specific questions on the verdict form and in the verdict.

No prejudice has been shown by the defendant. See Dilworth, 397 So. 2d at 292; Mitchell v. State, 689 So. 2d 1118 (Fla. 3d DCA 1997) (holding that special verdict form, not allegations in an information, indicates when a jury finds that a weapon has been used). Based on the evidence before the jury and the agreed-to jury instructions, the jury specifically found that Juan Delgado actually possessed a firearm in commission of the robbery. Because the information was sufficiently clear to charge the defendant with actual possession of the firearm and because the necessarily required finding of actual possession of the firearm was made, as reflected in the jury’s verdict, we affirm the defendant’s sentence including the tenyear minimum mandatory. Rodriguez; Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004); Mitchell.

Affirmed.

——–

Mark F. Sweitzer, pro se, Appellant.

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

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An appeal from the Circuit Court for Columbia County. Paul S. Bryan, Judge.

PER CURIAM.

We affirm the trial court’s partial denial of Appellant’s Florida Rule of Criminal Procedure 3.800(a) motion wherein Appellant requested jail credit for time under community control while his case was pending. We find Appellant’s appeal to be frivolous, and write to refer Appellant to the Department of

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Corrections for disciplinary procedures in accordance with section 944.279, Florida Statutes (2008). This opinion constitutes the written findings required under that section.

Judicial Inquiry and Findings

Appellant pled guilty to two counts of sexual battery by a person in familial or custodial authority, three counts of lewd or lascivious exhibition in the presence of a child, and two counts of lewd or lascivious molestation of a child. While the charges were pending, Appellant spent 35 days in jail, and an unspecified amount of time out on bond, but under community control. As a condition of community control, Appellant was required to wear a Global Positioning Satellite (GPS) monitor. After sentencing, Appellant filed a motion under Florida Rule of Criminal Procedure 3.800(a), essentially claiming that he should have received jail credit for the time spent under community control because it was like being incarcerated. The court correctly denied Appellant’s argument, citing Young v. State, 697 So. 2d at 75, 77 (Fla. 1997), and Toomajan v. State, 785 So. 2d 1275, 1276 (Fla. 5th DCA 2001). On appeal, Appellant merely reargues that the restrictions placed upon him while out on bond, but under community control, should count as time incarcerated.

A court may “at any time” determine whether a collateral criminal proceeding is filed in good faith. See § 944.279(1), Fla. Stat. (2008). The statute

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equates a lack of “good faith” with a determination that the collateral action was “frivolous.” See id.; § 944.28(2)(a), Fla. Stat. (authorizing the Department of Corrections to forfeit gain-time when an inmate files a “frivolous suit, action, claim, proceeding, or appeal”).

Appellant’s appeal is frivolous because the trial court clearly and unambiguously explained, when denying Appellant’s rule 3.800(a) motion, that credit would not be awarded for time spent on community control. This appeal could not have been filed in good faith because the law is well settled in this area. Time spent on community control is expressly prohibited from being credited towards a prison sentence. § 948.06(3), Fla. Stat. (2008) (“No part of the time that the defendant is… in community control shall be considered as any part of the time that he or she shall be sentenced to serve.”); see State v. Cregan, 908 So. 2d 387, 391 (Fla. 2005); Young, 678 So. 2d at 77; Walton v. State, 989 So. 2d 729 (Fla. 4th DCA 2008). We do not address whether the trial court should have imposed sanctions under section 944.279, Florida Statutes, but note that under the plain terms of the law, any court is authorized to report a frivolous or malicious collateral criminal proceeding to the Department of Corrections for disciplinary proceedings.

We hold that Appellant’s appeal of the trial court’s order denying relief in this collateral criminal proceeding is frivolous. We direct the clerk of this court to

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forward a certified copy of this opinion to the appropriate correctional institution for the imposition of disciplinary proceedings against Appellant, in accordance with section 944.279, Florida Statutes (2004).

AFFIRMED. Certified Opinion FORWARDED to the Department of Corrections.

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

Deana K. Marshall, Riverview, for Appellant/Cross Appellee.

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

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An appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.

PER CURIAM.

Gil Cancel Comas, Appellant, appeals his judgment and sentence for lewd or lascivious molestation, among other offenses. He raises ten issues on appeal, all of which are without merit. Accordingly, we affirm his judgment and sentence but

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write to address the State’s cross-appeal. On cross-appeal, the State argues that the trial court erred in dismissing Appellant’s conviction for lewd or lascivious conduct on double jeopardy grounds. We agree and reverse.

After a jury trial, Appellant was convicted of lewd or lascivious conduct and lewd or lascivious molestation, among other charges, based on distinct criminal acts that occurred within the same criminal episode. At the sentencing hearing, the trial court dismissed the lewd or lascivious conduct count because both convictions were “based on… basically the same incident” in violation of double jeopardy principles.

In State v. Meshell, 2 So. 3d 132, 135 (Fla. 2009), the Florida Supreme Court held that “sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.” The Meshell court further held that “[d]istinct acts of sexual battery do not require a ‘temporal break’ between them to constitute separate crimes” and, as a result, do not violate double jeopardy. Id. at 134-36.

InRoberts v. State, 1D08-1747, 2010 WL 2471904 (Fla. 1st DCA June 21, 2010), this Court applied Meshell to the lewd or lascivious molestation statute, holding as follows:

Considering the supreme court’s conclusion in Meshell that double jeopardy principles do not necessarily preclude multiple convictions

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for the same sexual offense committed by different actions during the same criminal episode, it necessarily follows that double jeopardy principles would not necessarily preclude convictions for two different sexual offenses committed by different actions during the same criminal episode.

Id. at *2. Based on this rationale, this Court concluded that the defendant’s convictions for sexual battery and lewd or lascivious molestation did not violate double jeopardy principles because the convictions were based on distinct criminal acts. Id.

As in Meshell and Roberts, Appellant’s convictions were based on distinct criminal acts that occurred in the same criminal episode. Therefore, the trial court erred in dismissing Appellant’s conviction for lewd or lascivious conduct on double jeopardy grounds. See Meshell, 2 So. 3d at 134-36; Roberts, 1D08-1747 at *2. Accordingly, we reverse the trial court’s dismissal and remand with directions for the trial court to reinstate Appellant’s lewd or lascivious conduct conviction and for sentencing on this conviction. We otherwise affirm Appellant’s judgment and sentence on the remaining offenses.

AFFIRMED in part, REVERSED in part, and REMANDED. WEBSTER, LEWIS, and ROBERTS, JJ., CONCUR.

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

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.

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An appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge.

PER CURIAM.

This is an appeal from an order granting a Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss the State’s prosecution of an armed burglary charge. Appellee, Tiffany Montique Greene, contends on appeal that the

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trial court correctly granted the motion because the undisputed facts did not establish a prima facie case of armed burglary. The State contends that the trial court erred in granting the motion because there were disputed issues of fact. Because we agree with the State, we reverse the trial court’s order granting the motion to dismiss.

An information can be dismissed when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Fla. R. Crim. P. 3.190(c)(4). To avoid dismissal, the State must file a traverse to deny the material fact or facts asserted in the motion to dismiss. State v. Sholl, 18 So. 3d 1158, 1160 (Fla. 1st DCA 2009). The trial court’s ruling on a motion to dismiss pursuant to rule 3.190(c)(4) is reviewed de novo. Id

In the motion to dismiss, Appellee alleged that she had a key to the residence she was alleged to have burglarized, she had permission to enter the residence at any time, the alleged victim never ordered her to leave the residence, and the alleged victim testified in a deposition that he never saw her with a gun. The State’s traverse admitted to these facts. However, it also identified issues of material facts, namely that the alleged victim had earlier stated that Appellee kicked in the door of his residence, that she did not have a key, and that he saw her with a gun. When the motion to dismiss and the traverse are viewed in a light most favorable to the State, it is apparent that there is a dispute over material issues of

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fact and that the trial court erred in granting the motion to dismiss. State v. Hudson, 27 So. 3d 155, 157 (Fla. 1st DCA 2010) (holding that the State’s traverse created a factual dispute by identifying a prior statement that contradicted a material fact); State v. Fetherfolf, 388 So. 2d 38, 39 (Fla. 5th DCA 1980) (holding that a motion to dismiss should have been denied when the traverse contained prior statements by the victim which contradicted material allegations in the motion, despite the fact that the victim had recanted those prior statements).

We REVERSE the trial court’s order granting the motion to dismiss and REMAND for further proceedings consistent with this opinion.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., CONCUR.

Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellant.

Mark Seiden; Daniel R. Silver, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Bertila Soto, Judge.

Before WELLS, SHEPHERD, and SUAREZ, JJ.

SHEPHERD, J.

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The State appeals from an order excluding in limine certain photographic and documentary evidence, which the State argues is relevant to the prosecution of the defendant, Raymond Lumarque, on pending charges of burglary with assault or battery, kidnapping, misdemeanor battery and sexual battery without serious injury, all arising out of an alleged incident involving his ex-wife. We have jurisdiction. See State v. Palmore, 495 So. 2d 1170, 1171 (Fla. 1986). The State also seeks certiorari relief from a trial court order declining the State permission to introduce into evidence an alleged prior incident involving the couple while their divorce was pending, which the State contends is admissible Williams Rule evidence. See Williams v. State, 110 So. 2d 654 (Fla. 3d DCA 1959).

We summarily deny the State’s petition for certiorari without discussion. On the appeal, we conclude the trial court abused its discretion by concluding that exhibits 5-9 and 11-15 are not admissible in the trial of this case. The State sought to admit into evidence two sexually suggestive images and eleven text messages between the ex-wife and a boyfriend, found on the defendant’s cellular telephone. The ex-wife testified that prior to the assault by the defendant, he showed her the two images and one of the text messages. There also is evidence in the record from which one might infer the defendant examined the ex-wife’s cellular telephone on the morning or afternoon before the alleged incident when he was

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alone in the house for a brief period after returning their children back to his exwife’s home.

At an in limine hearing, the trial court found the two images and one text message the ex-wife testified to admissible, but concluded the remaining exhibits inadmissible as the ex-wife could not authenticate them. The court erred. The images and text messages were found on the defendant’s cellular telephone, seized pursuant to a search of the defendant’s home through a warrant shortly after the alleged incident. This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits. U.S. v. Caldwell, 776 F. 2d 989, 1001-02 (11th Cir. 1985) (holding that authentication of evidence merely requires a finding that the evidence is what it purports to be). It also is immaterial that the ex-wife could not identify each of the messages being shown to her on the night of the incident. Regardless how these images and text messages might have found their way onto the defendant’s cellular telephone, the State has presented sufficient evidence at this stage that these exhibits constitute evidence of motive. Craig v. State, 510 So. 2d 857, 863 (Fla. 1987) (stating that evidence of motive is admissible when it would help the jury understand other evidence). Accordingly, they are admissible into evidence at the trial of this case upon the State laying the proper predicates as indicated by this opinion. In all other respects, we summarily affirm the order on appeal.

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Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Lunar Claire Alvey, 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, Julio Jimenez, Judge.

Before SUAREZ, CORTINAS, and SALTER, JJ.

SUAREZ, J.

The defendant, Juan Delgado, appeals a statutory ten-year minimum mandatory sentence for two counts of armed robbery with a firearm. We affirm

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the conviction and sentence on each count of armed robbery including the ten-year minimum mandatory for actually possessing a firearm in violation of section 775.087(2), Florida Statutes (2005).

The defendant contends on appeal that, because the charging information does not necessarily include Delgado as possessing a firearm in the commission of the robbery, the information is not specific enough to support the application of the ten-year minimum mandatory enhancement. We disagree.

An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. Fla. R. Crim. P. 3.140; State v. Dilworth, 397 So. 2d 292 (Fla. 1981); Bradley v. State, 971 So. 2d 957 (Fla. 5th DCA 2007), approved, 3 So. 2d 1168 (Fla. 2009). “The test for granting relief based upon a defect in the charging document is actual prejudice.” State v. Gray, 435 So. 2d 816, 818 (Fla. 1983).

Juan Delgado and a codefendant were charged in one information with committing two counts of armed robbery with a firearm or destructive device in violation of sections 812.13(2)(A), 775.087 and 777.011, Florida Statutes (2005), as follows:

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COUNT 1

ROLANDO PEREZ and JUAN ELIECER DELGADO, on or about June 30, 2007, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, take certain property, to wit: PURSE and/or JEWELRY and/or CREDIT CARDS and/or CELLULAR TELEPHONE, said property being the subject of larceny, and of the value of more than three hundred dollars ($300.00), the property of MARIA ZALDIVAR, as owner or custodian, from the person or custody of MARIA ZALDIVAR, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

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COUNT 2

And the aforesaid Assistant State Attorney, under oath, further information makes ROLANDO PEREZ and JUAN ELIECER DELGADO, on or about June 30, 2007, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, take certain property, to wit: JEWELRY, said property being the subject of larceny, and of the value of less than three hundred dollars ($300.00), the property of JOSE ZALDIVAR, as owner or custodian, from the person or custody of JOSE ZALDIVAR, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

Section 775.087(2), Florida Statutes (2005) states that a person convicted of a felony, who, during the commission of the felony, “actually possess[es] a firearm or destructive device… shall be sentenced to a minimum term of imprisonment of 10 years.” To enhance a defendant’s sentence by means of a statute containing a minimum mandatory, the information must clearly charge the grounds for enhancement. See State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992). Here, the caption of the information designates Rolando Perez as the “A” defendant and Juan Delgado as the “B” defendant. Defendants “A” and “B” are listed under Counts 1 and 2, showing that Counts 1 and 2 charge both defendants with the possession of

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a firearm in the commission of the robbery. The robbery with a firearm charges therefore apply to both defendants.

The text of the information refers to both defendants by name, and charges that “said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat.” The phrase, “said defendant,” likewise applies to both defendants since, under Florida law, the singular form of a phrase includes the plural form. In this case, the phrase, “said defendant,” includes the phrase, “said defendants.” § 1.01, Fla. Stat. (2009) (“In construing the statutes in each and every word, phrase or paragraph, where the context will permit: (1) the singular includes the plural and vice versa.”). Therefore, the minimum mandatory provisions of section 775.087(2) apply to both defendants. The information sufficiently alleges the essential elements of armed robbery, adequately advises the defendant of the charges against him, see Price v. State, 995 So. 2d 401 (Fla. 2008), and is sufficiently clear to charge the grounds for enhancement. See § 775.087(2), Fla. Stat. (2005); Rodriguez, 602 So. 2d at 1270.

A jury found Juan Delgado guilty of two counts of armed robbery. The trial judge sentenced Delgado to twenty years in prison with a ten-year minimum mandatory for the actual possession of a firearm followed by twenty-years

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probation.¹ The jury heard testimony from one of the victims that each assailant had a gun. Delgado defended on grounds that he was not at the scene of the robbery and did not have a gun. Without defense objection, the jury was instructed on armed robbery, including the charge for principals. Defense counsel even acknowledged that the jury would be charged with the responsibility of deciding if Delgado actually possessed a firearm. Again, without objection, verdict forms with blanks to indicate if a firearm was actually possessed were submitted for each defendant. On the verdict form for Juan Delgado, the jury found that Juan Delgado was guilty of robbery with a firearm and that he actually possessed a firearm. On the verdict form for the codefendant, the jury found that Rolando Perez was guilty of robbery with a firearm but that he did not actually possess a firearm. There was no objection to the form or to the verdict. Delgado was convicted of two counts of armed robbery and found to have been in actual possession of a firearm.

There was no question that the defendant knew he was being charged with actual possession of the firearm based on his defense. The jury’s specific finding of actual possession negates Delgado’s defense that he was not at the scene and did not have a gun. The specific finding by the jury of actual possession demonstrates that the evidence fully supported the charges against Delgado. Moreover, defense

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counsel acquiesced in the jury instructions, the specific questions on the verdict form and in the verdict.

No prejudice has been shown by the defendant. See Dilworth, 397 So. 2d at 292; Mitchell v. State, 689 So. 2d 1118 (Fla. 3d DCA 1997) (holding that special verdict form, not allegations in an information, indicates when a jury finds that a weapon has been used). Based on the evidence before the jury and the agreed-to jury instructions, the jury specifically found that Juan Delgado actually possessed a firearm in commission of the robbery. Because the information was sufficiently clear to charge the defendant with actual possession of the firearm and because the necessarily required finding of actual possession of the firearm was made, as reflected in the jury’s verdict, we affirm the defendant’s sentence including the tenyear minimum mandatory. Rodriguez; Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004); Mitchell.

Affirmed.

——–

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.

David R. Parry of Bauer, Crider, Pellegrino & Parry, Jordan Hills Professional Center, Clearwater, for Appellee.

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

Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.

WALLACE, Judge.

A Ford Escort occupied by John Alfred Walton III and two companions all of whom had been drinking for several hours and exhibited signs of impairment ran a red light and struck a minivan, causing serious bodily injury to a small child in the

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minivan. In a prosecution for driving under the influence (DUI) with serious bodily injury, the circuit court granted Mr. Walton’s motion to suppress his postcrash admissions that he had been driving the Escort on the ground that the State could not establish the corpus delicti of the offense. Mr. Walton argued, and the circuit court agreed, that the State was required to present independent proof of the identity of the Escort’s driver. The State appeals the circuit court’s order.¹

Because the evidence demonstrated that one of the passengers in the minivan was seriously injured by someone who was driving the Escort while his normal faculties were impaired by alcohol, the State is able to establish the corpus delicti of the offense. Under these circumstances, the State is not required to prove the identity of the driver of the Escort as part of the corpus delicti of the offense. Thus the circuit court erred in suppressing Mr. Walton’s postcrash admissions on the ground of the State’s inability to establish the corpus delicti, and we reverse and remand for further proceedings.

I. THE CRASH AND THE INVESTIGATION

On the morning of October 22, 2006, a purple Ford Escort ran a red light at the intersection of Damascus Road and State Road 60 in Clearwater. When the Escort went through the red light, a minivan travelling through the intersection struck the Escort in the front and rear doors on the driver’s side. Two City of Clearwater police officers, David Bruneau and Craig Murray, investigated the crash.

When the officers arrived at the scene, there were three people in or near the Escort: Mr. Walton was standing on the driver’s side toward the front; Anthony

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Godfrey was standing on the passenger’s side toward the rear; and Timothy Godfrey, Anthony’s brother, was sitting in the front passenger seat. Timothy Godfrey was not wearing a seatbelt. Witnesses reported that after the accident a man wearing a baseball cap got out of the back seat of the Escort and threw a bottle into the bushes. The investigating officers found one empty beer can and one unopened bottle of beer inside the Escort. The unopened bottle of beer was still cool to the touch.

Officer Bruneau spoke with Mr. Walton at the scene and noted a strong odor of alcohol on Mr. Walton’s breath and that Mr. Walton’s speech was somewhat slurred. Officer Murray similarly stated that when he spoke with Mr. Walton at the scene, Mr. Walton’s eyes were bloodshot, his speech was slurred, and he had an odor of alcohol on his breath. Mr. Walton twice told the officers that he was driving the Escort at the time of the crash. The officers arranged for Mr. Walton’s blood to be drawn, and the test results showed that he had blood-alcohol levels of.143 and.145.

The officers interviewed Timothy and Anthony Godfrey at a local hospital. Timothy Godfrey told the officers that he, his brother, and Mr. Walton had been drinking all night and into the morning. Timothy Godfrey also said that the three men had “smoked a little bit of pot.” Anthony Godfrey stated that when the crash occurred, he was in the back seat with an open bottle of liquor, which he later threw into the bushes. Officer Bruneau detected the odor of alcohol on both of the Godfrey brothers. Neither of the brothers identified who was driving the Escort at the time of the crash.

The primary damage to the Escort was to the front and rear doors on the driver’s side; the force of the collision pushed the doors in from six to twelve inches. All three occupants of the Escort sustained injuries. Anthony Godfrey had a laceration to his left arm that required surgery, and he had an injury to his left shoulder. Timothy

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Godfrey had a suspected closed-head injury. Emergency personnel immobilized him on a backboard at the scene of the crash. But the State did not present any evidence of the location of Timothy Godfrey’s head injury or how he may have struck his head. And while Mr. Walton did not have any major complaints at the scene, he went to a hospital the next day to be treated for two broken ribs on his left side. Officer Bruneau testified that Mr. Walton’s injuries could have been caused by sitting in the Escort’s driver’s seat when the accident occurred, and Officer Murray testified that the injuries to Mr. Walton’s ribs were consistent with his having been the driver of the Escort.

All three occupants of the minivan along with the Godfrey brothers were transported to a local hospital for treatment after the accident. A small child who was in the minivan sustained a deep laceration to his forehead. Based on the investigation into the circumstances of the crash, the State charged Mr. Walton with two offenses: count one, DUI with serious bodily injury, a violation of section 316.193(3)(c)(2), Florida Statutes (2006), and count two, driving while license suspended or revoked, a violation of section 322.34(2)(a), Florida Statutes (2006).

II. THE MOTION TO SUPPRESS AND THE CIRCUIT COURT’S RULING

Mr. Walton filed a motion to suppress his statements that he was driving the Escort at the time of the crash.² He alleged that “[t]here were no witnesses at the

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scene who were able to identify the driver of the purple Escort” and that “[a]t the time Officer Bruneau spoke with Mr. Walton, and at all times material to this prosecution, no sufficient Corpus Delecti [sic] existed to support the admissibility of any statements purportedly made by [Mr.] Walton.” At the hearing on the motion to suppress, defense counsel argued that the State could not establish the corpus delicti of the DUI offense because, apart from Mr. Walton’s statements, the evidence was insufficient to establish whether Mr. Walton or Timothy Godfrey was driving the Escort at the time of the crash.³

The State argued that the evidence supported a finding that Mr. Walton was the driver. In support of this view of the evidence, the State noted that the broken ribs on Mr. Walton’s left side were the type of injury that the Escort’s driver would have sustained when the driver’s side door caved into the passenger compartment from the force of the collision. The circuit court disagreed and took a different view of the evidence. As the circuit court saw the facts, it was impossible to conclude whether Mr. Walton or Timothy Godfrey was the driver.

The State also argued that the evidence reflected that both Mr. Walton and Timothy Godfrey were intoxicated and that “whichever one of them is the driver of

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the vehicle was intoxicated[;]… therefore, the elements of the crime have been established and corpus delicti has been satisfied.” The State asserted that “[t]he case law doesn’t say that the identity of the defendant is part of corpus delicti.”

The circuit court ruled that this court’s decision in State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004), required the State to show that Mr. Walton was the driver of the Escort independently of his postcrash admissions to the officers in order to establish the corpus delicti for the DUI offense. At the hearing, the circuit judge said:

I’m reading from Colorado which says the defendant’s admission he was the driver of the vehicle was not admissible, where the State could not prove without such statements he was driving at the time he allegedly committed the offenses charged. So apparently, at least to some extent, you have to I guess maybe by a preponderance or more likely than not suggested [in]dependent of the statements that that person is driving the car. And that’s what I’m reading them to say in Colorado….

….

… It’s not as simple as saying somebody was driving. It’s one of two guys, so that’s enough to give to a jury. It’s not that simple if you read what they are saying in Colorado and then the concurring opinion [by Judge Altenbernd] goes on to say in a different state where it has different rules, they would be ruled on differently in that case.

Based on its conclusion that the State was required to establish the identity of the driver of the Escort as part of the corpus delicti, the circuit court granted Mr. Walton’s motion to suppress. This appeal followed.

III. DISCUSSION

A. The State’s Arguments

On appeal, the State argues that the circuit court erred in granting Mr. Walton’s motion for two separate reasons. First, “there was circumstantial evidence

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that [Mr. Walton] was the driver.” Second, “as to the DUI count, the corpus delicti that a drunk driver was involved was established by evidence that all occupants of the car that caused the accident had been drinking.”⁴ Based on our disposition of the case, we need not address the State’s first argument. Turning to the State’s second argument, we disagree with the circuit court’s reading of Colorado and conclude that the circuit court’s ruling that the State was required to establish Mr. Walton’s identity as the driver of the Escort under the facts of this case is inconsistent with established precedent.

B. The Corpus Delicti Rule in the DUI Context

In State v. Allen, 335 So. 2d 823 (Fla. 1976), the Supreme Court of Florida addressed the application of the corpus delicti rule in the context of a conviction for DUI manslaughter which had been reversed by the First District. In that case, the defendant and the victim occupied the same vehicle. The supreme court noted that the corpus delicti rule requires “that before a confession is admitted the state has the burden of proving by substantial evidence that a crime was committed, and that such proof may be in the form of circumstantial evidence.” Id at 824. It observed that in reversing the defendant’s convictions, “the First District Court of Appeal appears to have adopted a legal standard which requires overwhelming proof by direct evidence that the crime charged was committed and that the defendant is the guilty party.” Id. at 824-25

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(emphasis added). In rejecting this reasoning, the supreme court said that proof of the necessary elements of the alleged crime may be made by circumstantial evidence before admission of a defendant’s confession. Id. at 825. The court also stated that the corpus delicti rule obviously does not require the state to prove a defendant’s guilt beyond a reasonable doubt before his or her confession may be admitted. Indeed, as this Court has stated before, it is preferable that the occurrence of a crime be established before any evidence is admitted to show the identity of the guilty party, even though it is often difficult to segregate the two. The state has a burden to bring forth “substantial evidence” tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.

Id. at 825 (emphasis added) (footnotes omitted). Significantly, the court stated, “We also reject the implication in the district court’s opinion that identification of the defendant as the guilty party is a necessary predicate for the admission of a confession.” Id.

The supreme court then applied the corpus delicti rule to the facts of the case before it and found that the State had met its preliminary burden of establishing the corpus delicti for DUI manslaughter with respect to the victim, Curtis Black. kd. at 825-26. It noted that “[t]he sole contention of [the defendant] was that, before his confession was admitted, the state had not proved he was driving the vehicle from which Curtis Black was thrown and killed. This question is relevant, since there would have been no crime if Black had been the driver.” Id. at 825 (emphasis added). Thus, while recognizing that the corpus delicti rule does not generally require the State to establish that the defendant is the guilty party, the court found on the facts before it that establishing the driver’s identity was necessary to show that a crime had been

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committed. Proof of the driver’s identity was necessary because on the facts in Allen there would have been no crime if the victim had been driving the vehicle.

In Burks v. State, 613 So. 2d 441 (Fla. 1993), the supreme court reaffirmed its holding in Allen. Burks also involved a DUI manslaughter conviction. The defendant allegedly drove a tractor-trailer that collided with and killed a motorcyclist. Although there was evidence apart from the defendant’s confession that the defendant was the driver of the tractor-trailer, the court noted that “the identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession.” Id at 443 (citing Allen, 335 So. 2d at 825). Thus, in Burks, the supreme court again recognized in the context of a DUI manslaughter case that the defendant’s identity as driver is not generally necessary to establish the corpus delicti.

A good example of a case demonstrating both when it is critical and when it is not critical to establish the identity of the driver in a DUI case is Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985), where the Third District addressed the proof of the corpus delicti with regard to three counts of DUI manslaughter. In Anderson, a truck occupied by three persons was traveling at a high rate of speed, ran a stop sign, and collided with a car traveling on an intersecting road. Id.. at 783. The impact with the

truck “caus[ed] the car to strike [a second] car[,] killing the driver of the first car.” Id. The State established that the [driver of the] truck took no evasive action [before] impact[,] that all three [occupants of] the truck were thrown out [upon] impact[,] that the defendant was found unconscious alongside the driver’s side of the truck, and [that] the other two occupants were found dead in front of the truck.

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Id. “[B]eer cans were strewn on the ground around the truck, and several more beer cans and a vodka bottle were found lying inside the truck.” Id The defendant’s bloodalcohol level was.22. Id.

In concluding that the State’s evidence was sufficient to establish the corpus delicti for the manslaughter charge involving the death of the driver of the first car, the court said:

[A]s to the manslaughter count involving the death of the driver of the first car struck by the “death truck,” plainly there was abundant evidence, apart from the defendant’s statement, establishing a corpus delicti of the crime charged. Clearly, this driver was killed due to the criminal agency of another by someone who was driving the “death truck” in an intoxicated state. The manner in which the truck was driven to the point of impact, plus the beer cans and vodka bottle later found in and around the truck, clearly show this. It was, of course, unnecessary to establish, apart from the above statement, that the defendant was the guilty party i.e., the driver of the “death truck” in order to lay a predicate for the admission of this statement.

Id at 783-84 (emphasis added) (citing Allen, 335 So. 2d at 825).

However, the court observed that establishing the corpus delicti with regard to the deaths of the other two occupants of the “death truck” presented a closer question. It explained:

Second, as to the remaining two manslaughter counts involving the deaths of the two occupants in the “death truck,” the question is closer and more complicated; ultimately, however, we think the evidence was sufficient, apart from the defendant’s statement, to establish a corpus delicti of these crimes as well. As to these deaths, it was essential to show on each count that the person allegedly killed was not the driver of the “death truck,” for if he was, there would be no crime committed as the person allegedly killed would have merely killed himself. Here the evidence is substantial that in all likelihood neither of these occupants were, in fact, driving the “death truck,” and did not kill themselves, because their bodies were found in front of the truck

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after the accident; the defendant, by way of contrast, was found lying near the driver’s side of the truck. This shows that the defendant most likely had been driving the truck and that his two dead companions had not.

Id. at 784 (emphasis added).

Thus the Anderson court recognized that identification of a defendant as the driver is not generally a necessary predicate to the admission of the defendant’s confession. But the court’s opinion in Anderson illustrates that under certain circumstances, the defendant’s identity as the driver is critical to establishing that a crime occurred. Under those particular circumstances, the defendant’s identity as the driver then becomes a necessary part of the corpus delicti.

C. This Court’s Decision in Colorado

In State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004), this court addressed the corpus delicti rule in the context of a DUI manslaughter case. Colorado involved a one-car accident in which, similar to the facts in Allen, the defendant and the victim occupied the same vehicle. Id at 469. The only evidence that the defendant was driving at the time of the accident was his admission. Id. After the circuit court granted the defendant’s motion to exclude the defendant’s statement based upon the State’s inability to establish the corpus delicti, the State sought rehearing based on new information that the victim “had a blood alcohol level of.18 grams of alcohol per 100 milliliters of blood.” Id. at 470. The State argued that the “evidence showed either that [the defendant] committed DUI manslaughter or that [the victim] committed DUI with personal injury. But there was no evidence… that [the defendant] was injured in the accident.” Id. The circuit court denied the motion for rehearing. Id.

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On appeal, this court observed that under the corpus delicti rule, “[t]he State ‘must at least show the existence of each element of the crime’ to authorize the introduction of a defendant’s admission or confession.” Id (quoting Allen, 335 So. 2d at 825). Further, “the State ‘must show that a harm has been suffered of the type contemplated by the charges… and that such harm was incurred due to the criminal agency of another. This usually requires the identity of the victim of the crime.’ ” Id (emphasis added) (quoting Allen, 335 So. 2d at 825). We noted that “[t]he supreme court has stated that ‘[i]n order to establish the corpus delicti in a homicide case, it is necessary to prove three elements: first, the fact of death; second, the criminal agency of another person as the cause thereof; and third, the identity of the deceased person.’ ” Id (emphasis added) (quoting Jefferson v. State, 128 So. 2d 132, 135 (Fla. 1961)). We then reviewed several Florida cases addressing the type of evidence necessary to place a defendant behind the wheel of a car involved in an accident before admitting the defendant’s statement that he was the driver. Id at 471.

Ultimately, the Colorado court concluded that the State was unable to establish that the defendant was driving the vehicle and that the corpus delicti rule prevented the State from relying solely on his confession “to establish this critical element.” Id at 471. We rejected “the State’s novel suggestion that the commission of a crime could be shown by substituting the victims because there [was] no record evidence that Colorado suffered personal injuries so as to establish a corpus delicti for DUI with personal injuries.” Id. at 471-72 (emphasis added). Moreover, “[t]he harm contemplated by each charge against [the defendant] DUI manslaughter, vehicular homicide, and driving without a valid license causing death is death.” Id at 472. And, “[t]he fact that both men were intoxicated show[ed] the second, criminal agency, prong

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of the corpus delicti, but no more.” Id In his concurring opinion, Judge Altenbernd pointed out that because both occupants of the subject vehicle were under the influence of alcohol, the only remaining issue was “[w]hich drunk was driving the car?” Id at 473. But the alleged victim could not be prosecuted for DUI because he was dead. Id

Under the particular facts in Colorado, establishing that the defendant was the driver of the vehicle was a necessary part of the corpus delicti. And Judge Altenbernd noted in his concurring opinion that other states do not require that the defendant’s identity as the driver be shown to establish the corpus delicti for DUI and that these jurisdictions merely require proof that “someone” was driving under the influence. Id at 472. He observed that if that were the law in Florida, the court would have reversed the order excluding Mr. Colorado’s admission and remanded for trial. Id. However, a fair reading of this court’s holding in Colorado does not require that the State prove the driver’s identity in a DUI case to establish the corpus delicti when the identity of the driver is not critical to showing that a crime occurred.

D. Application of Supreme Court Precedent and Colorado to this Case

Here, the circuit court misinterpreted this court’s decision in Colorado to conclude that the State must always prove the identity of the driver in a prosecution for a DUI offense in order to establish the corpus delicti. In addition, its conclusion that the State was required to produce evidence to show “by a preponderance or more likely than not” that Mr. Walton was the driver of the Escort to establish the corpus delicti is contrary to the supreme court’s decisions in Allen and Burks. As noted above, those cases recognize that generally the corpus delicti rule does not require the State to establish that the defendant is the guilty party as a predicate for the admission of a confession and that the State need only establish ” ‘substantial evidence’ tending to

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show the commission of the charged crime.” Allen, 335 So. 2d at 825; see also Burks, 613 So. 2d at 443 (citing Allen, 335 So. 2d at 825).

Although in some circumstances, such as those present in Allen and in Colorado, the identity of the defendant as the driver becomes a critical fact in establishing that a crime was committed, the facts pertinent to the charge for DUI with serious bodily injury in this case do not present such circumstances. Here, the State’s evidence established that someone drove the Escort while under the influence of alcohol and thereby caused serious injury to at least one of the occupants of the minivan. All three occupants of the Escort had been drinking, had been smoking marijuana, and showed signs of impairment. The Escort ran a red light and was struck by a minivan, causing a significant injury to a child in the minivan. Under these facts, the exact identity of the driver of the Escort was not necessary to establish that a DUI with serious bodily injury had occurred. See § 316.193(3)(c)(2). Because the identity of the driver of the Escort was not necessary to establish that a DUI with serious bodily injury had occurred, the circuit court erred in suppressing Mr. Walton’s statements that he had been driving the Escort when the crash occurred.

We recognize that this court has cited Colorado for the general proposition that “[t]here must be proof independent of a confession that the defendant was driving the vehicle involved in the crash” to establish the corpus delicti for DUI with serious bodily injury. Esler v. State, 915 So. 2d 637, 640 (Fla. 2d DCA 2005). We are also aware that the Fifth District has interpreted Allen and Burks to support this overly broad statement of the law. Syverud v. State, 987 So. 2d 1250, 1252 (Fla. 5th DCA 2008). And, in an earlier case, the Fifth District stated: “A, if not the, critical element of the corpus delicti of the offense of driving while intoxicated is evidence that the defendant

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was driving at the time she allegedly committed the offense.” State v. Hepburn, 460 So. 2d 422, 426 (Fla. 5th DCA 1984).

To the extent that these statements in Esler, Syverud, and Hepburn suggest that the State must always prove the defendant’s identity as the driver in a prosecution for a DUI offense as part of the corpus delicti, they are simply incorrect. But the sweeping pronouncements that appear in the opinions in these cases were not necessary to their holdings, and the cases are distinguishable from this case on their facts. In both the Esler and Hepburn cases, which involved hit-and-run accidents, the State was unable to provide independent proof of the criminal agency prong of the corpus delicti, i.e., that the drivers of the vehicles in question were intoxicated at the time of the events at issue.⁵ And in Syverud, the Fifth District concluded that substantial, competent evidence supported the trial court’s findings that the State had presented independent evidence that the defendant was driving the car that caused the crash. 987 So. 2d at 1252. Thus the Esler, Syverud, and Hepburn cases were correctly decided on their particular facts, notwithstanding the incorrect generalizations that appear in the opinions. Accordingly, we find no conflict between these three cases and our decision in this case.

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IV. CONCLUSION

The circuit court erred in concluding that this court’s decision in Colorado requires the State to establish that Mr. Walton was the driver of the Escort to satisfy the corpus delicti for the charge of DUI with serious bodily injury. Thus we reverse the order granting Mr. Walton’s motion to suppress and remand for further proceedings.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., Concur.

——–

James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

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

Appeal from the Circuit Court for Lee County; Edward J. Volz, Jr., Judge.

SILBERMAN, Judge.

Alison Torres seeks review of his judgment and sentence for fleeing or attempting to elude with wanton disregard, willful and wanton reckless driving causing damage, and resisting or obstructing an officer without violence. We reverse and

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remand for a new trial because the trial court erred in addressing Torres’ request to discharge court-appointed counsel.

Prior to trial Torres had filed a motion to discharge Assistant Public Defender Smith in which Torres alleged that attorney Smith was providing ineffective assistance because he failed to (1) obtain transcripts or call a witness with exculpatory evidence, (2) obtain an expert witness to explore Torres’ physical condition, and (3) adequately communicate with Torres or file a motion to suppress as requested. On the day of trial, attorney Smith informed the court that there was a problem between him and Torres. When Torres was brought out, he told the court that he had a conflict of interest with attorney Smith and that he had filed a motion for postconviction relief alleging the ineffective assistance of counsel. Torres asserted that he wanted a new attorney appointed. Instead of inquiring as to the basis for the alleged conflict of interest, the court immediately responded, “You’re not entitled to another lawyer.”

At that point, attorney Smith informed the court that Torres’ postconviction motion was actually filed against another public defender in his office. When Torres began to explain the basis for the motion, the court interrupted and again stated, “You’re not entitled to another lawyer.” In response, Torres stated that he did not want to proceed with the public defender. The court asked if he wanted to represent himself, and Torres said he did but then started to argue some of the points in his motion to discharge counsel and his motion for postconviction relief.

The court responded by beginning a Faretta¹ inquiry. When Torres tried to interrupt, the court cut him off and stated, “This is a Faretta inquiry, sir. We’re doing it

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right now. Now, if you want to represent yourself, you have every right to do so, as foolish as that is.” Ever persistent, Torres repeatedly attempted to explain that he was dissatisfied with attorney Smith’s assistance. While Torres was able to make some abbreviated argument, the court repeatedly cut him off by either resuming the Faretta inquiry or telling Torres he was not entitled to substitute counsel. Court then recessed so Torres could change into a suit for trial.

When court resumed, the bailiff informed the court that Torres told him attorney Smith was “making faces at him.” Counsel denied the assertions. Attorney Smith also informed the court that Torres refused to give him his suit size. When Torres was brought in, the court asked if he was still representing himself. Torres replied by asserting that attorney Smith had been making faces at him and “calling me all like this.” Torres said, “I do not want him in my trial, period.” The court then resumed its Faretta inquiry.

Torres again interrupted the inquiry to assert that he had a conflict with attorney Smith and requested a substitute attorney. The court unequivocally informed Torres that he was not getting another attorney and completed the Faretta inquiry. When it became clear to Torres that the trial was going to proceed without the court appointing substitute counsel, Torres agreed to go to trial represented by attorney Smith.

The supreme court has adopted the procedure outlined by the Fourth District in Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), for addressing a criminal defendant’s request to discharge court-appointed counsel. See Hardwick v. State, 521 So. 2d 1071, 1074-75 (Fla. 1988). Preliminarily, the court must determine

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whether the defendant’s request to discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the request. Jackson v. State, 33 So. 3d 833, 835 (Fla. 2d DCA 2010). If the request is unequivocal and the defendant asserts counsel’s ineffective assistance as the reason for the request, the court must conduct an inquiry ” ‘to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel.’ ” Milkey v. State, 16 So. 3d 172, 174 (Fla. 2d DCA 2009) (quoting Maxwell v. State, 892 So. 2d 1100, 1102 (Fla. 2d DCA 2004)). If the court determines there is no such reasonable cause, then it need not pursue further inquiry. If the defendant pursues his request to discharge counsel, the court must inform him he is not entitled to court-appointed substitute counsel and that he must represent himself. Id. If the defendant seeks to represent himself, the court must conduct a Faretta inquiry to determine that the defendant is knowingly and intelligently waiving his right to counsel. Maxwell, 892 So. 2d at 1102.

This court reviews whether a trial court conducted an adequate Nelson inquiry for an abuse of discretion. Jackson, 33 So. 3d at 836; Milkey, 16 So. 3d at 174. Generally, the trial court’s ruling may also be reviewed to determine whether the error was harmless. Jackson, 33 So. 3d at 836. However, a court’s failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply. Jackson, 33 So. 3d at 835, 836; Milkey, 16 So. 3d at 174.

The facts of this case are analogous to those in Milkey. In Milkey, the defendant appeared for his revocation of probation hearing and informed the court that he was “not really happy” with defense counsel. 16 So. 3d at 173. The court

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responded, “You can represent yourself if you wish.” Counsel explained that another attorney was representing the defendant on the new law charges. The court cut counsel off and addressed the defendant, stating, “She’s not here. You can have [defense counsel] or you can represent yourself. What are we doing? Are we going to have a hearing?” Whereupon, the defendant proceeded with defense counsel and was found in violation of probation.

On appeal, this court concluded that the trial court effectively refused to conduct a preliminary Nelson inquiry and reversed. Id. at 177-78. We explained as follows:

Upon hearing that Milkey was “not really happy” with counsel, the court should have allowed him to finish his sentence to determine the basis of his dissatisfaction and whether some type of Nelson inquiry was necessary. The trial court should have given Milkey the opportunity to have his desire to discharge counsel “come to light.” Based upon the options given to Milkey by the trial court-discharging his counsel and representing himself or proceeding with current counsel-it is apparent that the trial court understood Milkey’s statement as an effort to discharge counsel. Even though Milkey might not have ultimately been entitled to a full Nelson/Faretta hearing, the trial court should have further inquired to determine whether he, in fact, wished to discharge counsel and the basis for his request…. On the record before us, the trial court was not permitted to assume that Milkey’s dissatisfaction was not based on counsel’s incompetency or that a Nelson hearing, if conducted, would dispel any notion of counsel’s incompetency.

Id at 176 (citations omitted); see also Nesmith v. State, 6 So. 3d 93, 94-95 (Fla. 1st DCA 2009) (holding that court erred in failing to conduct a preliminary Nelson inquiry but instead proceeding straight to a Faretta hearing when the defendant asked for substitute counsel).

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In this case, as in Milkey, it is clear that the trial court understood that Torres wished to discharge counsel. Additionally, as in Milkey, the court responded to Torres’ complaint about counsel by informing Torres that he could represent himself but that he was not getting substitute counsel. As in Nesmith, the court then proceeded into a Faretta inquiry while bypassing the Nelson inquiry. Although Torres was able to articulate one of the bases for his alleged conflict with counsel, he was able to only briefly mention a second basis and he did not get to address the third basis at all. Instead, the court steadfastly refused to allow Torres to explain the bases for his motion to discharge counsel. While it is possible that Torres’ claims would not have warranted a full Nelson inquiry, the record does not clearly establish this fact. Instead, the trial court improperly assumed that Torres’ dissatisfaction with counsel was not based on counsel’s incompetency or that a Nelson hearing, if conducted, would have dispelled any notion of counsel’s incompetency.

Contrary to the State’s assertions, this is not a case in which the court conducted a preliminary Nelson inquiry but the defendant was unable to articulate a reason beyond generalized complaints that failed to allege ineffective assistance. Cf. Augsberger v. State, 655 So. 2d 1202 (Fla. 2d DCA 1995); Kott v. State, 518 So. 2d 957 (Fla. 1st DCA 1988). It is clear from the transcript that Torres would have liked the opportunity to explain the bases for his assertions that counsel was ineffective, but the court refused to allow him to do so. Furthermore, the allegations in Torres’ motion to discharge counsel were more than generalized complaints about trial preparation or strategy or a general loss of confidence in defense counsel. Instead, Torres had set

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forth specific claims of ineffective assistance of counsel that the court refused to hear or consider.

It is apparent that Torres was being obstinate and difficult, but the court was still required to conduct a preliminary Nelson inquiry. As this court has explained:

We recognize the burden placed on a trial court by Nelson and Faretta when confronted by a defendant, who is often obstreperous, claiming ineffective assistance of courtappointed counsel. We realize that the procedures mandated by these cases will often involve a tedious and time-consuming process designed to test the frustration and patience level of the most able trial judge, especially when the request for discharge comes on the day of trial and a jury venire of inconvenienced citizens is impatiently waiting in the courthouse for the jury selection process to begin. We must emphasize, however, the importance of strict adherence to these requirements and the real potential for reversal should they not be followed, thereby resulting in a needless expenditure of judicial resources.

Jones v. State, 658 So. 2d 122, 126 (Fla. 2d DCA 1995).

Thus, the trial court erroneously failed to conduct a preliminary Nelson inquiry in this case. Furthermore, this failure is per se error which precludes the application of a harmless error test. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.

——–

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

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

Appeal from the Circuit Court for Polk County; Keith Spoto, Judge.

ALTENBERND, Judge.

Brent Johnson appeals his judgment and sentence for possession of a firearm by a convicted felon, in violation of section 790.23(1)(a), Florida Statutes (2008). He argues that the trial court erred by submitting to the jury, in addition to certified copies of his previous convictions, extensive information about his prior felonies. We agree that the trial court erred in submitting this information, and, in the context of this

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trial, we cannot conclude that the error was harmless. Accordingly, we reverse and remand for a new trial.

Mr. Johnson was charged with public discharge of a firearm and possession of a firearm by a convicted felon for events that occurred shortly after midnight on July 24, 2008. On that night, a Lakeland police officer was dispatched to a neighborhood to check reports that a gun had been discharged. The officer’s investigation took him to the home of Mr. Johnson’s wife. The officer found dry 9mm casings near the front door on wet grass causing him to conclude that the casings were from a gun that had recently been discharged.

After knocking on the front door, the officer talked to both Mr. Johnson and his wife. Mrs. Johnson permitted a search of the home, which produced a rusty, but loaded,.357 revolver that had not recently been fired. The officer claimed Mr. Johnson told him that the home was his residence, but at trial Mr. Johnson testified that he was separated from his wife and that he was only visiting at the home to see his children that night. Mr. Johnson told the officer that he had fired a gun three times into the air because he was in fear for the safety of his family due to some event happening in the neighborhood and that he had put the gun in a car that had left the scene before the officer arrived. At trial, Mr. Johnson admitted that he made this statement but claimed it was a lie that he had told the officer in an effort to avoid an arrest for a more serious offense.

Both the attorney for the State and Mr. Johnson’s attorney confronted difficulties at trial that made a relatively simple case more complex. The neighbors who had reported the matter to the police refused to testify. The only eyewitness presented

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by the State could recall nothing on the stand. At the end of the State’s case, the trial court granted a judgment of acquittal on the charge of public discharge of a firearm because the State had presented no evidence to establish the corpus delicti of this offense aside from the casings found on the ground.

Although Mr. Johnson did not contest the validity of his prior convictions and in his own testimony acknowledged four prior felonies, his attorney refused to stipulate to his status as a felon at the beginning of trial. To prove Mr. Johnson’s status as a felon, the State first presented testimony to connect Mr. Johnson to three criminal case numbers. Next the State sought to move into evidence State’s Exhibit 2, which included, among other items, certified copies of convictions corresponding to those case numbers. At this point, Mr. Johnson’s attorney offered to stipulate to his status, but the State declined to accept a stipulation.

The transcript reflects a level of understandable frustration by both the assistant state attorney and the trial judge that court time was being spent to establish the prior convictions. After hearing defense counsel’s argument, the court allowed State’s Exhibit 2 into evidence over a defense objection. This exhibit is nearly forty pages in length. Six of those pages are three certified copies of judgments convicting Mr. Johnson of felonies. Those pages were properly admitted in the absence of a stipulation because Mr. Johnson’s status as a convicted felon was a necessary element of the offense of possession of a firearm by a person convicted of a felony. See § 790.23(1)(a); see also State v. Davis, 203 So. 2d 160, 162 (Fla. 1967).

The remaining documents contained in State’s Exhibit 2 included charging informations, sentences, orders assessing fines and costs, and an affidavit of violation

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of probation. The charging documents detailed some offenses for which Mr. Johnson had never been convicted. Defense counsel timely objected to State’s Exhibit 2 to the extent that portions of the exhibit were not relevant to the charged offense and were unduly prejudicial. The court declined to redact anything from State’s Exhibit 2 other than Mr. Johnson’s prior misdemeanor convictions. We conclude that the detailed factual information in these documents was irrelevant to prove Mr. Johnson’s status as a felon or to prove any other element of this case. See, e.g., State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000) (cautioning that the State, in a felony DUI case, “may only submit a certified copy of each judgment in order to evidence a defendant’s prior DUI convictions and shall not develop the facts underlying any such offense unless the defendant contests the validity thereof”).

We have considered whether the introduction of this extraneous information was harmless. We note that the exhibit contained information about an earlier conviction for felon in possession of a firearm as well as other felonies. In this case, the State did not focus on the.357 revolver found in the home; it was not clear from the evidence whether Mr. Johnson lived at the home or had any knowledge or connection to that rusty revolver. See generally Daniels v. State, 718 So. 2d 1274, 1275 (Fla. 2d DCA 1998) (explaining that the State must prove either constructive or actual possession to establish violation of section 790.23). The State instead focused on the 9mm weapon, which was never produced or placed into evidence. The weaknesses in the State’s case were undoubtedly diminished by the improper information in State’s Exhibit 2. Accordingly, we cannot conclude that the inadmissible evidence was harmless and we reverse and remand for a new trial.

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Reversed and remanded.

NORTHCUTT and WALLACE, JJ., Concur.