EMANUEL MCMULLEN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Emanuel McMullen was convicted of multiple robbery counts charged in a single information. The court reversed his conviction, holding that the five separate robberies were improperly joined under Florida Rules of Criminal Procedure Rule 3.150(a) because they were not based on the same act or transaction, and that severance was mandatory upon timely motion.
The five robberies were improperly joined because they were not based on the same act or transaction in either an episodic or temporal sense. The similarity in circumstances—all occurring within a nine-day period in the same geographic area with four involving fast food restaurants—does not warrant joinder. Severance was mandatory upon McMullen's timely motion because prejudice is conclusively presumed when offenses are improperly joined.
[1] Offenses are improperly joined when they are not based on the same act or transaction, or on two or more connected acts or transactions.
[2] The similarity in circumstances of separate robberies, such as location and type of establishment, does not warrant joinder under Rule 3.150(a) of the Florida Rules of Cr…
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Join FLexlaw to unlock all legal intelligence“Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on two or more connected acts or transactions”
Establishes the joinder standard under Rule 3.150(a) that governs whether multiple offenses can be tried together.
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Join FLexlaw to unlock all legal intelligenceMcMullen was charged in a single information with twenty counts of robbery arising from five separate criminal episodes occurring between December 18 …
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ON MOTION FOR REHEARING
PER CURIAM.
Upon consideration of appellant’s motion for rehearing and further review of the record in this cause, we withdraw the decision filed June 30, 1981, and substitute the following opinion in lieu thereof.
Emanuel McMullen was charged in a single information with twenty counts of robbery arising from five separate criminal episodes. The five robberies, four of which involved well known fast food restaurants, all occurred between December 18,1978 and December 27, 1978. Prior to trial the court denied McMullen’s motion to sever the offenses. Following his acquittal on six of the counts and his conviction on the remaining counts, McMullen filed this appeal challenging the denial of his motion to sever. We reverse.
Rule 3.150 of the Florida Rules of Criminal Procedure, entitled “Joinder of Offenses and Defendants,” provides in pertinent part:
(a) Joinder of Offenses. Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on two or more connected acts or transactions, [e. s.]
We find that the five separate robberies charged in the information were misjoined since the offenses were not “based on the same act or transaction. . .” in either an episodic or temporal sense. See Paul v. State, 385 So. 2d 1371 (Fla.1980), partially adopting the dissenting opinion of Judge Smith in Paul v. State, 365 So. 2d 1063 (Fla.1st DCA 1979). The similarity in circumstances resulting from the fact that the robberies all took place in the northwest quadrant of Dade County within a nine day period, and that four of the five robberies involved fast food restaurants, does not warrant joinder under Rule 3.150(a). See Macklin v. State, 395 So. 2d 1219 (Fla.3d DCA 1981) (joinder of two separate criminal episodes involving taxicab holdups five days apart at locations less than one block apart where both cab drivers were dispatched to the area by a prior phone call was improper).
Where offenses are improperly joined in one information, severance is mandatory upon timely motion, Fla.R.Crim.P. 3.152(a)(1), since prejudice is conclusively presumed. Macklin v. State, supra. Inasmuch as McMullen timely moved to disjoin the five robberies, severance was required.
Our determination that McMullen must be retried separately for each of the offenses makes it unnecessary to consider the other point on appeal which argues a denial of due process of law because the trial court limited defense counsel to a total of thirty minutes on closing argument for all five robberies.
Reversed and remanded for further proceedings not inconsistent with this opinion.
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Citator
Cited By (12 total)
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Boyd v. State, 578 So. 2d 718 (Fla. 3d DCA 1991)…ent or information. Thames v. States, 454 So. 2d 1061 (Fla. 1st DCA 1984). It is settled law that separate offenses may not be joined where the basis for the join-der is the similarity of the circumstances of the charged offenses. McMullen v. State, 405 So. 2d 479 (Fla.3d DCA 1981); Macklin v. State, 395 So. 2d 1219 (Fla.3d DCA 1981). In this case, although there was a series of robberies involving a gun, stolen cars, and elderly victims, the robberies occurred at different times, places, and involved differe…
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Williams v. State, 409 So. 2d 253 (Fla. 4th DCA 1982)…se from Paul, supra. Similarly, the fact that both sales occurred within a week’s time is not enough. See Macklin v. State, 395 So. 2d 1219 (Fla. 3d DCA 1981) (defendant charged with two taxicab holdups occurring five days apart); McMullen v. State, 405 So. 2d 479 (Fla. 3d DCA 1981) (five similar robberies within nine days). Thus, I believe that Paul controls. Since appellant freely admitted coming into contact with the undercover officer, but denied selling drugs, identity was never at issue. Consequently,…
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Jones v. State, 497 So. 2d 1268 (Fla. 3d DCA 1986)…150(a) in both Williams and Paul mandates the severance of offenses and separate trials where, as here, the only connection between the two criminal episodes was the use of a stolen car and the accused’s alleged participation. See McMullen v. State, 405 So. 2d 479 (Fla. 3d DCA 1981); Macklin v. State, 395 So. 2d 1219 (Fla. 3d DCA 1981); cf. Green v. State, 408 So. 2d 1086 (Fla. 4th DCA 1982) (severance not required when two criminal acts take place in same area within seconds of each other). For these reason…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Paul v. State, 365 So. 2d 1063 (Fla. 1st DCA 1979)
- Robles DEL MAR, Inc. v. Town OF Indian River Shores, 385 So. 2d 1371 (Fla. 1980)
- Paul v. State, 385 So. 2d 1371 (Fla. 1980)
- MacKlin v. State, 395 So. 2d 1219 (Fla. 3d DCA 1981)