ROBERT DAVID ELLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert David Ellis appeals his convictions for sexual battery and lewd and lascivious conduct, challenging the trial court's refusal to sever count IV (involving one victim) from counts I-III (involving different victims). The appellate court agreed that severance was required because the counts were improperly joined and their combination created unfair prejudice.
The trial court abused its discretion in denying the severance motion because severance was necessary to achieve a fair determination of guilt or innocence. Additionally, count IV was improperly joined with counts I-III because the acts were not sufficiently connected; they were related only by similar circumstances and alleged guilt, which is insufficient under Florida law.
[1] A trial court abuses its discretion by denying a motion to sever counts when the state argues that the defendant's admission to one offense implies guilt for others, as t…
[2] Multiple offenses may not be joined or consolidated if they are only connected by similar circumstances and the defendant's alleged guilt in both instances, rather than b…
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Join FLexlaw to unlock all legal intelligence“We think severance was necessary to promote a fair determination of defendant's guilt or innocence. The record reveals that the state argued in closing that because defendant admitted that he had committed one offense, he must also have committed the others.”
Establishes the prejudicial effect of joinder when the state uses admission on one count to prove guilt on others.
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Join FLexlaw to unlock all legal intelligenceEllis was charged in counts I-III with sexual battery by digital penetration of two young victims (T.M., age 9, and A.V.Y., age 7) between October 1 a…
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SCHEB, Acting Chief Judge.
Defendant, Robert David Ellis, appeals his convictions and sentence for sexual battery and lewd and lacivious conduct claiming that the trial court failed to sever an improper count from the information. We agree.
Counts I, II, and III of the information charged defendant with committing a sexual battery by digital penetration upon T.M. (age 9) and A.V.Y. (age 7) between October 1, 1986, and December 25, 1986. Count IV of the information charged defendant with committing a lewd and lascivious act with K.H. (age 14) during that same period. Defendant admitted having intercourse with K.H.
Defendant filed a motion to sever count IV from the information, pursuant to Florida Rule of Criminal Procedure 3.152, alleging that severance was necessary to achieve a fair determination of his guilt or innocence of each charge. Defendant also claimed that severance was necessary since count IV involved different victims and occurred at a different time. The trial court denied defendant’s motion.
We think severance was necessary to promote a fair determination of defendant’s guilt or innocence. The record reveals that the state argued in closing that because defendant admitted that he had committed one offense, he must also have committed the others. We think use of the evidence in this manner was highly prejudicial towards defendant and is prohibited by Rule 3.152. Therefore, we find that the trial court abused its discretion when it denied defendant’s motion to sever count IV.
We further note that count IV was improperly joined with the other counts in the information. Florida Rule of Criminal Procedure 3.151 requires that multiple offenses be related in order to permit joinder or consolidation of the offenses. Consolidation is inappropriate when the acts are “connected” only by similar circumstances and the accused’s alleged guilt in both instances. State v. Williams, 453 So. 2d 824 (Fla.1984); Paul v. State, 385 So. 2d 1371 (Fla.1980) (adopting Paul v. State, 365 So. 2d 1063 (Fla. 1st DCA 1979) (Smith, J., dissenting).
We think the misconduct involving T.M. and A.V.Y. was not directly connected by evidence to the acts involving K.H. It cannot reasonably be inferred that defendant's continuing misconduct involving T.M. and A.V.Y. led to his act of intercourse with K.H. The acts were related only in that they were sex offenses occurring within the same two month period in defendant’s home, the victims knew each other, and the defendant was allegedly guilty. Therefore, we do not think the acts were connected in the episodic sense.
We find no merit in defendant’s remaining claim.
REVERSED AND REMANDED.
RYDER and SCHOONOVER, JJ., concur.
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Hammond v. State, 660 So. 2d 1152 (Fla. 2d DCA 1995)…w each other; two were cousins and two were students at the same school; but there is no episodic connection between the alleged offenses. The charges should have been severed. See Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989); Ellis v. State, 534 So. 2d 1234 (Fla. 2d DCA 1988). Finally, because retrial will be necessary in this case, we need not address the sentencing issues raised by the appellant. We do note, however, that the inclusion of victim injury points based upon Karchesky v. State, 591 So. 2…
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Roark v. State, 620 So. 2d 237 (Fla. 1st DCA 1993)…the convictions, the court ruled the “acts charged in each information related to a different victim and an entirely separate and different factual event than that charged in each other information.” 548 So. 2d at 809. Similarly, in Ellis v. State, 534 So. 2d 1234 (Fla. 2d DCA1988), the court concluded the acts committed against two of the victims were not connected in an episodic sense to the act allegedly committed against a third victim where the evidence showed the “acts were related only in that they wer…
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Bierer v. State, 582 So. 2d 1230 (Fla. 3d DCA 1991)…nd J.V. would have been admissible to show a general pattern, motive, intent or absence of mistake. We agree with the appellant that his argument for severance is supported by Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989), and Ellis v. State, 534 So. 2d 1234 (Fla. 2d DCA 1988).2 It was held in those cases that the offenses were not so connected in an episodic sense to justify consolidation. See Fla.R.Crim.P. 3.151. In Wallis the three victims were sisters. As grounds for reversing the convictions, the c…
Previewing 3 of 6 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)
- State v. Williams, 453 So. 2d 824 (Fla. 1984)