Santiago v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JEFFREY SANTIAGO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2023-1150

October 16, 2024

Appeal from the Circuit Court for Pinellas County; Philip J. Federico,

Judge.

Howard L. Dimmig, II, Public Defender, and Andrea M. Norgard,

Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards,

Assistant Attorney General, Tampa, for Appellee.

SMITH, Judge.

Appellant Jeffrey Santiago challenges his judgment and sentences

following a conviction on charges of aggravated battery and witness

tampering. Because the trial court erred in denying Mr. Santiago's

request for a continuance following the State's amendment to the

information to add a new witness tampering charge five days before trial,

we reverse and remand for a new trial on the witness tampering charge.

We affirm his judgment and sentence for the aggravated battery

conviction without comment.

On February 10, 2021, Mr. Santiago was charged by information

with aggravated battery. According to an arrest report, on December 26,

2020, Cary Martinez, the victim and Mr. Santiago's girlfriend, informed

an officer that, after an argument over Mr. Santiago's permission to use

Ms. Martinez's vehicle, Mr. Santiago threw Ms. Martinez on the ground,

placed his knee on her neck, and covered her nose and mouth with his

hand. She reported that he then punched her in the face, causing one

tooth to fall out and another to loosen. On the 911 call played at trial,

Ms. Martinez told the dispatcher that Mr. Santiago had knocked her

tooth out and was taking her truck.

However, Ms. Martinez later submitted affidavits, statements, and

waivers of prosecution recanting her statements to law enforcement,

claiming that she had fabricated her allegations against Mr. Santiago

because she was mad at him and that her tooth had been loosened in a

car accident and had fallen out on its own when she yelled at Mr.

Santiago.

Despite a no-contact order between Mr. Santiago and Ms. Martinez,

during the roughly two years while Mr. Santiago was awaiting trial, he

contacted Ms. Martinez by phone more than 4,400 times. In one of these

phone calls, from as early as February 15, 2021, Mr. Santiago told Ms.

Martinez that the State had no case against him if she refused to testify.

Ms. Martinez asked, "If they have pictures, then what?" and Mr. Santiago

replied, "If they have pictures . . . you say: Look, man, the day before, I

got into a car accident." He also told her that if the State had pictures of

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her injuries, she could write a statement saying everything she had

previously told law enforcement was a lie.

Based on these phone calls, on March 3, 2023—five days before

trial—the State filed a second amended information adding the new

charge of witness tampering. On the day of trial, Mr. Santiago's counsel

requested a continuance due to the short notice of the new charge,

seeking to take additional depositions of Ms. Martinez, Mr. Santiago's

mother, and the jail staff who recorded the calls. He requested to

further retrench given the new charge, the new count that's

obviously more serious than the underlying count. [Mr.

Santiago] would ask that I be able to take a more thorough

investigation of that case to more properly prepare for trial. I

think that's a reasonable request on his part. So this

morning I'm asking to continue.

The trial court asked Mr. Santiago's counsel what specifically

would be different about the facts of the case a few months later, and

counsel stated he could not say until he conducted additional

investigation. The trial court responded that the tampering charges

arose because Mr. Santiago had repeatedly violated the no-contact order

and that a continuance would only grant Mr. Santiago the opportunity to

continue violating the order and stack up more witness tampering

charges, noting that the facts would remain the same months from now.

The trial court further pointed out that the State had flown a police

officer from North Carolina to testify that day based on Mr. Santiago's

earlier insistence of a speedy trial. And for those reasons the trial court

denied the motion for continuance.

The jail phone calls were ultimately played for the jury after being

authenticated by an employee of the State Attorney's office who retrieves

and makes copies of Pinellas County Jail phone calls. Ms. Martinez also

testified at trial, reiterating the recantation of her allegations against Mr.

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Santiago and stating that her injuries, which had been observed and

photographed by responding law enforcement, had resulted from a car

accident days before she called 911. The responding officer testified that

Ms. Martinez had told her that Mr. Santiago had placed a knee on her

neck and punched her in the face. The officer also stated that she had

observed that Ms. Martinez had blood on her mouth and shirt, had

swollen lips, and had redness on her throat. Mr. Santiago testified on

his own behalf, also stating that Ms. Martinez's injuries had been caused

by a car accident days before she called 911. He stated that his mother

had been listening in on the jail calls and that he had not been

instructing Ms. Martinez on how to recant her claims against him but

rather had been explaining the process of his case to his mother.

The jury found Mr. Santiago guilty as charged, and he was

sentenced to concurrent thirty-year sentences for both counts, with a

fifteen-year mandatory minimum as a prison releasee reoffender on

count one.

Mr. Santiago argues that the trial court abused its discretion in

denying his motion to continue trial after the State filed the second

amended information, five days before trial, adding the new charge of

witness tampering, a first-degree felony, which covered a two-year period

and 4,400 phone calls.

"The denial of a motion for continuance is within the sound

discretion of the trial court, and the trial court's ruling will not be

disturbed unless a palpable abuse of discretion is shown." Chavez v.

State, 48 So. 3d 1022, 1024 (Fla. 2d DCA 2010) (citing M.D.B. v. State,

952 So. 2d 590, 592 (Fla. 2d DCA 2007)). "In a criminal case, however,

the defendant and his or her counsel are entitled to a reasonable time to

prepare for trial." Id. (first citing Browne v. State, 102 So. 546, 546-47

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(Fla. 1924); and then citing Langon v. State, 791 So. 2d 1105, 1113 (Fla.

4th DCA 1999)). "The common thread running through those cases in

which a palpable abuse of discretion has been found[] is that defense

counsel must be afforded an adequate opportunity to investigate and

prepare any applicable defense." Smith v. State, 525 So. 2d 477, 479

(Fla. 1st DCA 1988) (first citing Loren v. State, 518 So. 2d 342, 346 (Fla.

1st DCA 1987); and then citing Brown v. State, 426 So. 2d 76, 80 (Fla.

1st DCA 1983)).

We consider the factors set forth in Baron v. Baron, 941 So. 2d

1233, 1235-36 (Fla. 2d DCA 2006), and McKay v. State, 504 So. 2d 1280,

1282 (Fla. 1st DCA 1986). See Turner v. State, 311 So. 3d 185, 189 (Fla.

2d DCA 2020). In Baron, we held that the following factors are to be

reviewed in determining whether a trial court abused its discretion in

denying a motion for continuance:

1) whether the movant suffers injustice from the denial of the

motion; 2) whether the underlying cause for the motion was

unforeseen by the movant and whether the motion is based

on dilatory tactics; and 3) whether prejudice and injustice will

befall the opposing party if the motion is granted.

941 So. 2d at 1235-36 (quoting Myers v. Siegel, 920 So. 2d 1241, 1242

(Fla. 5th DCA 2006)). And where the motion also raises insufficient time

to prepare, we held in Turner that the additional factors in McKay, 504

So. 2d at 1282, should be considered. Specifically, McKay requires that

in ruling on a request for continuance from recently retained counsel, a

trial court should consider:

1) the time available for preparation, 2) the likelihood of

prejudice from the denial, 3) the defendant's role in

shortening preparation time, 4) the complexity of the case, 5)

the availability of discovery, 6) the adequacy of counsel

actually provided[,] and 7) the skill and experience of chosen

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counsel and his pre-retention experience with either the

defendant or the alleged crime.

504 So. 2d at 1282 (citing United States v. Uptain, 531 F.2d 1281, 1286-

87 (5th Cir. 1976)). The State relies on McKay to argue that Mr. Santiago

was not prejudiced by the amended information because he retained his

trial counsel almost three months before the trial began. But McKay

addresses only part of our analysis here—the adequateness of time for

Mr. Santiago's counsel to prepare. The issue in McKay centered on

whether Mr. McKay was deprived of his right to counsel of his choice

under the Sixth Amendment. 504 So. 2d at 1282. Mr. McKay's private

counsel, who was retained on the Friday before trial was to begin on

Monday, requested a continuance on the morning of trial to allow for

time to prepare for trial, which the trial court denied. Id. at 1281.

Instead, the trial court allowed his private counsel to serve as cocounsel

to Mr. McKay's public defender. Id. There is no discussion in McKay

regarding new charges or the filing of an amended information. Here,

Mr. Santiago clearly stated his grounds for the continuance based upon

the newly filed charges on the eve of trial, in addition to the need to

further investigate and prepare for trial.

Florida Rule of Criminal Procedure 3.140(j) allows an amendment

of the information any time prior to trial "because of formal defects." See

also State v. Burgess, 153 So. 3d 286, 289 (Fla. 2d DCA 2014) ("It is well-

settled that the state may amend its information pre-trial or even during

trial, either as to substantive or non-substantive matters, unless the

defendant is prejudiced thereby." (quoting State v. Clifton, 905 So. 2d

172, 178 (Fla. 5th DCA 2005))). The filing of a new charge does not

constitute a "formal defect" under rule 3.410. Cf. Snipes v. State, 733 So.

2d 1000, 1005 (Fla. 1999) (holding that the misspelling of a victim's

name was a formal defect that did not prejudice the defendant); State v.

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Emanuel, 153 So. 2d 839, 843 (Fla. 2d DCA 1963) (stating that the

information contained defect where the name of the owner of a building

broken into was not accurate). And the "rule does not circumscribe the

[S]tate's power to file a new and separate information." State v. Ford, 641

So. 2d 508, 510 (Fla. 5th DCA 1994). However, "[t]here is a significant

difference . . . between amending a charged offense and the filing of a

new and entirely different offense." Green v. State, 728 So. 2d 779, 781

(Fla. 4th DCA 1999). A defendant is prejudiced by the filing of an

amended information where the amendment adds "a completely new

substantive offense with completely different elements of proof

immediately before trial [begins], without giving defense counsel an

opportunity to investigate and prepare any applicable defense." Davis v.

State, 313 So. 3d 835, 837 (Fla. 2d DCA 2021); see also Turner, 311 So.

3d at 190-91 (holding that the trial court abused its discretion in denying

the defendant's request for continuance after the State filed an amended

information six days before trial adding a burglary count to the original

charge of attempted lewd or lascivious molestation, stating that "the

likelihood of prejudice to [the defendant] was substantial, given that the

burglary with assault or battery charge required proof of different

elements and exposed him to a" higher sentence, resulting in a violation

of due process rights); Peevey v. State, 820 So. 2d 422, 424 (Fla. 4th DCA

2002) (reversing the denial of a continuance where the State filed an

amended information the morning of trial adding a count of aggravated

assault to the original charge of aggravated assault on a different victim,

stating that "the nature of the defense was significantly altered by the

amendment, and the amended information charged the [d]efendant with

an entirely new offense").

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In this case, the amended information added the new charge of

witness tampering, an entirely different offense from the original charge

of aggravated battery. The new charge was based upon 4,400 phone

calls between Mr. Santiago and Ms. Martinez spanning the two years that

Mr. Santiago was in jail awaiting trial—the first phone call on February

15, 2021, occurring five days after the first information was filed and

over two years before trial. Yet for reasons not apparent from the record,

the State did not file the amended information until Friday, March 3,

2023, before the trial was to begin the following Wednesday. Not only did

the new charge carry a more severe penalty, but five days did not allow

Mr. Santiago's counsel an adequate opportunity to investigate this new

charge consisting of 4,400 phone calls or develop any defense against the

new charge, and thus, it follows that the likelihood of prejudice to Mr.

Santiago was substantial. Accordingly, the trial court abused its

discretion in denying the continuance request based upon the new

charge. See, e.g., Johnson v. State, 439 So. 2d 342, 343-44 (Fla. 2d DCA

1983) (holding that the defendant was prejudiced by the State's filing of

two amendments of information, which expanded the period of time in

which the offense was allegedly committed, two days before trial,

reasoning that the defendant was "entitled to have additional time to

prepare her defense"); Shepherd v. State, 108 So. 2d 494, 496 (Fla. 1st

DCA 1959) (holding that the trial court abused its discretion in denying

the defendant's motion for continuance after the State materially

amended the information two days before trial, as "the short interval of

time ensuing between the amendment and trial date made it impossible

for defendant to adequately prepare his defense and secure by subpoena

the presence of witnesses whose testimony would be necessary to

support his defense against the amended charge").

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We therefore reverse the denial of the motion for continuance,

vacate Mr. Santiago's conviction and sentence for the witness tampering

charge, and remand for a new trial on the witness tampering charge. See

Davis, 313 So. 3d at 837. Regarding his remaining conviction, Mr.

Santiago is also entitled on remand to resentencing based upon a

corrected scoresheet of his conviction. See Turner, 311 So. 3d at 191.

Affirmed in part; reversed in part; remanded.

SLEET, C.J., Concurs.

ATKINSON, J., Concurs in result only.

Opinion subject to revision prior to official publication.

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