BARRETT BLACKWELL

v.

THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed November 22, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1903 Lower Tribunal No. F21-12322 ________________

Barrett Blackwell, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Michelle Delancy, Judge.

Carlos J. Martinez, Public Defender, and Nicholas Lynch, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before LINDSEY, GORDO, and BOKOR, JJ.

LINDSEY, J.

I.

BACKGROUND

In July 2021, Dessiray Sondgerath, the victim, called police to report that Blackwell had broken into the apartment where she was sleeping. Blackwell and Sondgerath knew each other as they were former romantic partners. Following a police investigation, Blackwell was arrested and charged by Information with six counts. Relevant here is Count³ for petit theft. As set forth in the Information:1 BLACKWELL . . . did unlawfully obtain or use, or did endeavor to obtain or use A PURSE AND/OR A WALLET, the property of

DESSIRAY

SONDGERATH, with the intent to either temporarily

1 Florida Rule of Criminal Procedure 3.140(k)(5) permits alternative or disjunctive allegations for a single offense: “For an offense that may be committed by doing 1 or more of several acts, or by 1 or more of several means, or with 1 or more of several intents or results, it is permissible to allege in the disjunctive or alternative such acts, means, intents, or results.”

At trial, Sondgerath testified that she awoke to the sound of Blackwell entering through the kitchen window, “hollering, as he was coming through the window, that he wanted his phone, and his wallet.” Sondgerath told Blackwell she did not have his phone or wallet and did not know where they were. After Blackwell entered the apartment, Sondgerath ran to the bedroom and locked the door. Blackwell broke into the bedroom, still demanding his phone and wallet. Sondgerath showed Blackwell her purse so he could see she did not have his phone or wallet. He snatched her purse away from her and emptied its contents on the floor. Blackwell eventually left the apartment with Sondgerath’s phone, wallet, and medication. On the petit theft count, the trial court instructed the jurors to determine whether “Blackwell knowingly and unlawfully obtained, or used, the purse or wallet of Dessiray Sondgerath.” (Emphasis added). The verdict form simply required the jury to determine whether Blackwell was guilty of petit theft and whether the stolen property was valued at more than $750. Blackwell did not object to the court’s instruction or the verdict form. The jury found

II.

ANALYSIS

Blackwell argues on appeal that the trial court should have required the jury to unanimously determine whether he stole the purse, the wallet, or both. “Because this argument is being made for the first time on appeal, the issue is reviewed for fundamental error.” Cherfrere v. State, 277 So. 3d 611, 614 (Fla. 4th DCA 2019) (citing State v. Kettell, 980 So. 2d 1061, 1068 (Fla. 2008)).² In Florida, a jury verdict must be unanimous. See, e.g., Fla. R. Crim. P. 3.440 (“No verdict may be rendered unless all of the trial jurors concur in it.”); Fla. Std. Jury Instr. (Crim.) 3.12 (“The verdict must be unanimous, that is, all of you must agree to the same verdict.”). Here, although the jury unanimously found Blackwell guilty of petit theft, Blackwell contends fundamental error occurred because the trial court did not require the jury to unanimously agree on at least one of the two factual acts underlying the theft. The State argues that when a single offense, such as petit theft, may be

2 “Fundamental error is error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’” Cherfrere, 277 So. 3d at 614 (quoting Krause v. State, 98 So. 3d 71, 73 (Fla. 4th DCA 2012)).

Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring)).⁴

3 Blackwell did not file a reply brief to address the State’s arguments.

4 Although this explanation is found in a portion of the Court’s plurality opinion, a majority agreed with this longstanding general rule. See Schad, 501 U.S. at 649-50 (Scalia, J., concurring) (“As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict.” (citations omitted)). Moreover, although the Court has partially receded from Schad, the portion relevant here remains good law. See Dillard v. State, 329 So. 3d 788, 790 n.2 (Fla. 2d DCA 2021), review denied, SC21-1770, 2022 WL 1052407 (Fla. Apr.⁸, 2022).

5 Blackwell exclusively relies on cases in which a single count was based on separate offenses—that is, offenses separated by time and place or of a separate character and type.

III.

CONCLUSION

Accordingly, because the jury was not required to unanimously agree on the two alternative means of committing a single offense of petit theft, no fundamental error has occurred. We therefore affirm the judgment and sentence.

Affirmed.