JUSTIN WESCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2011-10-19
No. 1D10-2271
DAVIS, PADOVANO, and ROWE, JJ., concur.
72 So. 3d 304 Florida District Court of Appeal, First District (2011) Positive Treatment
Cited by 2 cases

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Synopsis

Justin Wescott appealed his convictions for grand theft, burglary, and providing a false name to law enforcement. The Florida First District Court of Appeal reversed and remanded for a new trial on all counts, finding two fundamental errors: conviction on an uncharged crime variant and denial of the right to impeach a witness.


Holding

Wescott is entitled to a new trial on all counts. First, convicting a defendant of an uncharged crime based on a variance between allegation and proof constitutes fundamental, non-harmless error, particularly where the defendant could theoretically be convicted twice of the same offense. Second, the trial court violated Wescott's constitutional right to confront and impeach adverse witnesses by denying him the opportunity to use the recording with proper redactions.


Headnotes

[1] A conviction for an uncharged crime constitutes fundamental error.

[2] A variance between the crime charged and the crime proven is fatal if it allows for the possibility of double jeopardy.

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Key Quotes

“It is fundamental error to convict a person of an uncharged crime.”

Establishes the core principle that the variance between the charged crime (false name to Investigator Harvey) and proved crime (false name to Sergeant Starling) constituted fundamental error.

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Facts & Procedural History

Wescott was charged with providing a false name to Investigator Steve Harvey, but the State presented evidence only that he provided a false name to S…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Justin Wescott, challenges his convictions for grand theft, burglary of a structure, and providing a false name to a law enforcement officer. For the reasons discussed below, we agree that Appellant is entitled to a new trial on all of these charges.

At the conclusion of Appellant’s first trial, the jury returned a unanimous verdict on the charge of providing a false name to a law enforcement officer.1 The information specifically charged Appellant with providing a false name to Investigator Steve Harvey; however, the State only presented evidence that Appellant provided a false name to Sergeant Bill Starling and the prosecutor argued during closing that the jury should find Appellant guilty because the evidence showed that he provided a false name to Sergeant Starling. It is fundamental error to convict a person of an uncharged crime. Bennett v. State, 823 So.2d 849, 852 (Fla. 1st DCA 2002). “While proof of a crime separate and distinct from the crime charged can constitute a fatal variance, not every variance between allegation and proof is fatal.” Taylor v. State, 672 So.2d 580, 581 (Fla. 1st DCA 1996). In this case, however, the error cannot be considered harmless because Appellant could, in theory, twice be convicted of the same crime because he was convicted of providing a false name to Sergeant Starling even though the State has yet to charge him with that crime.

Prior to the second trial, after a proper inquiry by the court, Appellant decided to represent himself on the remaining charges. During Appellant’s cross examination of Investigator Harvey about the contents of Appellant’s post-arrest statement, Appellant informed the court that he wanted to impeach Investigator Harvey’s testimony by playing the recording of his interview with the investigator. The prosecutor and Appellant’s standby *306counsel, who represented him during the first trial, informed the court that the recording would need to be redacted to remove references to Appellant’s criminal history. The court found that there was insufficient time to redact the recording, and it gave Appellant the option of playing the recording in its entirety or not at all. After learning that the recording contained a detailed recitation of all of Appellant’s prior convictions, Appellant chose not to play the recording.

The trial court in this case did not specifically find that Appellant’s objection to the inclusion of the prejudicial material was untimely; however, it was the trial court’s concern with having to make the jury wait that caused it to insist that Appellant had to play the entire recording or nothing. There is no requirement that a party must object pretrial to an officer’s legally obtained statements if those objections apply to specific questions or answers within the statement. Sparkman v. State, 902 So.2d 253, 254 (Fla. 4th DCA 2005). Moreover, this case presents a unique situation because Appellant, as a pro se litigant that was incarcerated at the time of the trial, did not have access to the tape or the ability to redact the tape. The trial court’s ruling prevented Appellant from exercising his constitutional right to impeach the witnesses against him on cross examination. See Garcia v. State, 816 So.2d 554, 561 (Fla.2002) (noting that both the United States and Florida Constitutions give defendants the right to confront adverse witnesses). We decline to find that this error was harmless as we are unable to say that there is no reasonable possibility that the jury’s verdict would not have been affected by Appellant’s impeachment of Investigator Harvey’s testimony with this recording. We, therefore, reverse Appellant’s convictions and remand for a new trial. Because Appellant is entitled to a new trial for the reasons stated above, we decline to address the other issues raised on appeal.

REVERSED and REMANDED.

DAVIS, PADOVANO, and ROWE, JJ., concur.


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Citator

Cited By

  • Long v. State, 191 So. 3d 554 (Fla. 4th DCA 2016)
    …im in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for thd same offense.’” Id. (quoting Brown v. State, 135 Fla. 30, 184 So. 518, 519-20 (Fla.1938)). See also Wescott v. State, 72 So. 3d 304, 305 (Fla. 1st DCA 2011) (stating that where a defendant could “in theory’'1 be prosecuted twice for the same crime, an error in a charging document cannot be considered harmless). Specifically with regard to the variation of names on the criminal…

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