NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006
FRANIZY JEAN-MARIE, Appellant, vs. THE STATE OF FLORIDA, Appellee.
** ** ** ** ** ** LOWER TRIBUNAL NO. 03-7868 CASE NO. 3D04-2570
Opinion filed November 15, 2006. An Appeal from the Circuit Court for Miami-Dade County, Victoria S. Sigler, Judge. Bennett H. Brummer, Public Defender Assistant Public Defender, for appellant. and Robert Kalter,
Charles J. Crist, Jr., Attorney General and Olga L. Villa, Assistant Attorney General, for appellee. Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ. SUAREZ, J. The defendant appeals a final judgment of conviction and sentence for armed burglary, possession of an altered firearm, and carrying a concealed firearm. We affirm the conviction and
sentence for armed burglary and possession of an altered firearm and vacate the conviction and sentence for carrying a concealed firearm. On March 19, 2003, in the evening, Miami-Dade Robbery
Intervention Unit Detectives observed a car driving with its right front headlight out in the area of Northeast 160th Street. The detectives’ vehicle turned behind the subject vehicle and activated its emergency equipment to effect a stop. When the
subject’s car came to a stop, the passenger door opened, the defendant jumped out of the car and ran east-bound through an alley. A detective ran after him on foot. The defendant did not
stop when ordered numerous times to do so, but only looked back at the detective who was wearing a polo shirt and vest with the word “police” written all over them. The defendant continued
running away from the detective, and dove head first over a fence into the backyard of a residence. him into the backyard with a flashlight. The detective followed The detective yelled
for the defendant to “stop,” as he saw him reach with his hand to the front of his body and throw a firearm up against the fence. The defendant chasing continued him. to run The toward the gate, the
apprehended him in the front of the yard. The gun was discovered approximately three to four feet inside the fenced property and three feet from the house. It was later learned that the gun
scratched off the gun.
The defendant was charged with carrying
a concealed firearm, unlawful possession, sale, or delivery of a firearm with an altered or removed serial number and armed
burglary. 1 At trial, an employee of a pawn shop testified that the gun found in the yard by the detective was the same gun which had been in the possession of the pawn shop until it was stolen in March of 2002. It was never shown that the defendant was the At the close of the State’s case,
one who had stolen the gun.
the defendant moved for judgment of acquittal on grounds that the State failed to prove the crime of armed burglary because the requisite intent when to commit the the offense property of had carrying not a
demonstrated, and the predicate crime of resisting an officer without denied violence the a was legally The jury insufficient. found the The trial judge of a
removed or altered serial number and armed burglary.
sentenced to five years for carrying a concealed firearm, 364 days for possession of a firearm with an altered serial number and fifteen years for armed burglary, to run concurrent with a
The charge of resisting an officer without violence was nolle prossed by the State. 3
ten-year minimum mandatory. sentences. The defendant contends
He now appeals the convictions and
denying his motion for judgment of acquittal in that the State failed to prove the requisite intent for carrying a concealed firearm 2 and that the charge of resisting an officer without violence 3 was legally inadequate. As such, since intent to
commit an offense therein is a precondition to a finding of guilt under the burglary statute, 4 the burglary conviction cannot
The carrying a concealed firearm statute provides: 790.01 Carrying concealed weapons.— *** (2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
§ 790.01 (2), Fla. Stat. (2002).
The resisting an officer without violence statute provides: 843.02 Resisting officer without violence to his or her person.—Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1),(2),(3),(6),(7),(8),. . .in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
§ 843.02, Fla. Stat. (2002).
The relevant part of the burglary statute is as follows:
The State responds that there was sufficient evidence to
show that the defendant intended to commit the crime of carrying a concealed firearm when he entered the victim’s property, that the facts are legally adequate to prove resisting an officer without violence and thus, the elements under the burglary
statute have been satisfied.
§ 810.02(b)(1), Fla. Stat. (2002).
In reviewing an order denying a motion for judgment of acquittal, the standard of review is de novo to determine, as a question of law, the sufficiency of the evidence to support a particular criminal charge. Lynch v. State, 293 So. 2d 44 (Fla. 1974); Jones v. State, 790 So. 2d 1194 (Fla. 1st DCA 2001). The
appellate court must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State, to establish, as a matter of law, that the evidence is legally adequate to support the charge. Lynch, 293 So. 2d at 45. First, the defendant argues that the act of throwing the firearm up against the fence demonstrated that he did not have Burglary.*** (b) For offenses “burglary” means: committed after July 1, 2001,
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter. . . § 810.02 (b)(1), Fla. Stat. (2002).
the intent to commit the crime of carrying a concealed firearm when he entered the backyard. ran from his car, dove into The facts show that the defendant a backyard residence and kept
running away from the detective without allowing him to view his firearm until he attempted to dispose of it before reaching the front gate. Because he kept running with the firearm concealed,
the defendant was continuing to commit the act of carrying the concealed firearm. The defendant intended to conceal the gun
while he was running away prior to entering the backyard; he continued to intend to conceal it when jumping over the fence to enter the property; and the intent remained with him until he overtly raised his arm to let go of the gun. Lints v. State, 643 So. 2d 689 (Fla. 5th DCA 1994)(possession of firearm continuing offense); Bailey We v. find State, that 637 So. 2d 333 (Fla. of 2d DCA was
1994)(same). presented to
firearm, and as such, the defendant demonstrated the requisite intent to satisfy the intent-to-commit-a-crime element for the offense of armed burglary. Second, the defendant raises as error the denial of his motion for judgment of acquittal and the ensuing guilty verdict for resisting an officer without violence as legally
insufficient since the defendant did not possess the intent to commit the offense when he entered the backyard of the
residence, and therefore it cannot serve as a precondition to a finding of guilt under the burglary statute. “The language of the burglary statute, as drafted by the Legislature, requires both an entry and the requisite intent to commit a crime [therein]. . . . Thus, while the actual
penetration into any interior or enclosed area may constitute an entry,. . .an intent to. . .commit an unauthorized act therein after entry has occurred must also be established to satisfy the intent required to commit a crime.” Drew v. State, 773 So. 2d 46, 52 (Fla. 2000). In order to prove that a defendant is
guilty of obstructing an officer without violence, the state must prove that intent the to defendant detain him fled and with that knowledge the of the was
justified in making the detention due to his founded suspicion that the defendant was engaged in criminal activity. v. State, 681 So. 2d 797 (Fla. 2d DCA 1996). Cf. D.M. Although
“‘[f]light, standing alone, does not constitute obstructing an officer nor does it give rise to a well-founded suspicion of criminal activity. . .an individual may be guilty of unlawfully obstructing an officer if he flees while knowing of the
officer’s intent to detain him and the officer is justified in making a stop. . . .’” 4th DCA 1999). Mosley v. State, 739 So. 2d 672 (Fla.
Even if the original pursuit by officers lacks
reasonable suspicion or probable cause, the resultant totality
of the circumstances may provide adequate grounds to support the denial of a motion for judgment of acquittal. In Mosley,
officers pursued the defendant, who had been standing with a group of people on the street, as he ran away from them after they had yelled, “Stop. Hollywood Police.” During the pursuit,
which initially was invalid, the defendant dropped his cocaine pipe, which was recovered by one of the officers. The Fourth
District found that, at that point in time, the officers had probable cause to arrest him. him to stop. They continued to yell, directing
Mosley held that “[h]is flight, in conjunction
with probable cause for arrest, was sufficient to establish the guilt of the charge [resisting an officer without violence],” Mosley, 739 So. 2d at 675, and that the trial court properly denied a motion for judgment of acquittal. for review are strikingly similar. The facts presented
If, arguendo, the Miami-Dade
Robbery Detective, who was chasing the defendant after he ran from the vehicle in which he was a passenger, initially did so without a founded suspicion of criminal activity, at the point in time when the detective saw the defendant throw his gun away, there was probable cause for his arrest for carrying a concealed firearm. The fact that the defendant continued to flee after, once again, being commanded to stop, establishes that he ran, knowing of the officer’s intent to detain him. Because the
officer was then justified in making the stop, the trial court
was correct in denying the motion for judgment of acquittal. Mosley; Calliar for v. State, 714 of So. 2d 1134 for (Fla. 1st DCA
resisting defendant with
without dropped of
evidence after coupled
that chase with
wirecutters to detain
suspicion of criminal activity, sufficient to present to jury), quashed in part on other grounds, 760 So. 2d 885 (Fla. 1999); Britton v. State, 604 So. 2d 1288 (Fla. 2d DCA 1992)(motion for judgment of acquittal for resisting arrest without violence
properly denied; evidence that defendant ran into house with the intent to hide from officers sufficient to submit to jury on issue of whether conduct satisfies “intent to commit offense therein” within meaning of burglary statute). In consideration of the standard of review for a motion for judgment of acquittal–-whether the evidence and all reasonable inferences taken in the light most favorable to the State are sufficient to support the charge, see Lynch v. State, 293 So. 2d at 44--we conclude that there was sufficient evidence of intent to convict the defendant of the crime of carrying a concealed firearm, § 790.01(2), Fla. Stat. (2002); cf. Davis v. State, 761 So. 2d 1154 (Fla. 2d DCA 2000), and, as a matter of law, the offense of resisting an officer without violence was legally adequate for the jury’s consideration. § 843.02, Fla. Stat.
The defendant next contends that the trial court erred when it allowed the State to introduce evidence, over objection, that the gun carried by the defendant had been stolen because the State never proved that the defendant was the one who stole the gun or knew that the gun had been stolen. We find that the
trial court did not err in admitting the evidence of the stolen gun as this fact was inextricably intertwined with the carrying a concealed firearm and armed burglary charges before the jury. This testimony was necessary to establish the entire context out of which these crimes arose. § 90.402, Fla. Stat. (2005);
Griffin v. State, 639 So. 2d 966 (Fla. 1994). [E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue . . . necessary . . . to adequately describe the deed. Griffin, 639 So. 2d at 968 (citing Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). Moreover, even if the trial
judge admitted the evidence erroneously, the error was harmless due to the ample evidence of the defendant’s guilt. Harmon v.
State, 527 So. 2d 182 (Fla. 1988); see West v. State, 579 So. 2d 288 (Fla. 3d DCA 1991).
The defendant raises the issue of whether double jeopardy attaches to his convictions for both armed burglary and carrying a concealed firearm. We agree that the defendant cannot be
convicted and sentenced for two crimes involving a firearm that arose out of the same criminal episode and, therefore, double jeopardy barred the defendant from being convicted and sentenced for both armed burglary and carrying a concealed firearm. State
v. Stearns, 645 So. 2d 417 (Fla. 1994); Shaffer v. State, 710 So. 2d 79 (Fla. 4th DCA 1998); accord Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1988). The convictions and sentences for armed burglary and
possession of an altered firearm are affirmed.
and sentence for carrying a concealed firearm is vacated. Affirmed in part, vacated in part and remanded for resentencing.