Trevor Amos Brown v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-555

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TREVOR AMOS BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

John L. Miller, Judge.

July 9, 2018

WETHERELL, J.

Trevor Amos Brown appeals his conviction for use of a firearm

during the commission of a felony in violation of section 790.07(2),

Florida Statutes (2015). He argues that the trial court should have

dismissed the charge pursuant to his motion under Florida Rule of

Criminal Procedure 3.151(c). We agree and reverse.

I

This case stems from a drug deal gone bad. It is undisputed

that Brown went to the victim’s house to buy marijuana and that

he shot the victim. However, the circumstances of the shooting

were disputed. Brown claimed that he shot the victim in self-

defense after the victim and another man attacked him and tried

to rob him of the money that he brought to buy the marijuana. By

contrast, the victim claimed that Brown shot him during the foot

chase that ensued after Brown took the satchel containing the

marijuana without paying.

Brown was arrested for (1) armed robbery, (2) aggravated

battery with a firearm, and (3) use of a firearm during the

commission of a felony, but he was only charged with the first two

offenses. Brown was not charged with the third offense because,

according to the “No Prosecution with Charges” document filed by

the prosecutor contemporaneously with the original information,

that offense was “combined in counts 1 and 2.” The case proceeded

to trial at which the jury found Brown not guilty of armed robbery

(and its lesser included offenses) and deadlocked on aggravated

battery.

Shortly after the first trial, the State filed a second 1 amended

information (re)charging Brown with aggravated battery with a

firearm and adding a new charge of use of a firearm during the

commission of a felony. The underlying felony for the latter charge

was the attempted purchase of “20g or more” of marijuana, not the

robbery or the aggravated battery. 2

Brown filed a motion to dismiss the use-of-a-firearm count

pursuant to rule 3.151(c) because that charge stemmed from the

same criminal episode as the armed robbery charge for which he

was acquitted in the first trial. The trial court denied the motion

and the case proceeded to trial.

At the second trial, the jury found Brown guilty on the use-of-

a-firearm count and deadlocked (again) on the aggravated battery

count. The trial court adjudicated Brown guilty of use of a firearm

1 An amended information was filed prior to the first trial, but

like the original information, it only charged Brown with armed

robbery and aggravated battery with a firearm.

2 The record does not explain why the drug transaction was

not used as the underlying felony from the outset. However, the

“No Prosecution with Charges” document implies that the

prosecutor originally considered only the armed robbery or the

aggravated battery to be the underlying felony.

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during the commission of a felony and sentenced him to two years

of community control followed by three years of probation. The

State nol prossed the aggravated battery count.

This appeal followed.

II

We review de novo Brown’s claim that he was entitled to

dismissal of the use-of-a-firearm count under rule 3.151(c). See

O’Leary v. State, 109 So. 3d 874, 876 (Fla. 1st DCA 2013) (“We

review a trial court’s denial of a motion to dismiss under a de novo

standard of review.”).

Rule 3.151(c) provides:

(c) Dismissal of Related Offenses After Trial. When

a defendant has been tried on a charge of one of two or

more related offenses, the charge of every other related

offense shall be dismissed on the defendant’s motion

unless [1] a motion by the defendant for consolidation of

the charges has been previously denied, or [2] unless the

defendant has waived the right to consolidation, or [3]

unless the prosecution has been unable, by due diligence,

to obtain sufficient evidence to warrant charging the

other offense or offenses.

The rule is intended to “protect defendants from successive

prosecutions based upon essentially the same conduct.” Franklin

v. State, 719 So. 2d 938, 940 (Fla. 1st DCA 1998); see also Dixon v.

State, 486 So. 2d 67, 69 (Fla. 4th DCA 1986) (“The purpose behind

rule 3.151(c) is to allow the defendant a means to protect himself

(by motion to dismiss) from multiple trials on charges of related

offenses when he has already suffered a prior trial on a related

offense.”). Offenses are “related” for purposes of the rule “if they

are triable in the same court and are based on the same act or

transaction or on 2 or more connected acts or transactions.” Fla.

R. Crim. P. 3.151(a). “The state can establish the necessary

connection by demonstrating (1) an uninterrupted crime spree or

(2) a causal link irrespective of the passage of time.” Lindsey v.

State, 220 So. 3d 1255, 1257 (Fla. 1st DCA 2017); see also Paul v.

State, 385 So. 2d 1371, 1372 (Fla. 1980) (adopting Judge Smith’s

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dissent in Paul v. State, 365 So. 2d 1063 (Fla. 1st DCA 1979), which

explained that rule 3.151 “refer[s] to ‘connected acts or

transactions’ in an episodic sense” rather than charges that “are

‘connected’ only by similar circumstances and the accused’s alleged

guilt in both or all instances”); State v. Varnum, 991 So. 2d 918,

920 (Fla. 4th DCA 2008) (“Dismissal under Rule 3.151(c) . . . is

required only where the offenses arise out of a single criminal

episode.”).

Here, as the prosecutor conceded at the hearing on the

defendant’s motion to dismiss, 3 the use-of-a-firearm count is

“related” to the offenses that were the subject of the first trial

because the offenses were inextricably intertwined and occurred

during a single ten-minute criminal episode—the drug deal gone

bad. The offenses could have been prosecuted in the same court,

and none of the exceptions in rule 3.151(c) are present because

Brown did not file a previous motion for consolidation, he did not

waive his right to consolidation, and there is no showing that the

prosecution was unable, by due diligence, to obtain sufficient

evidence to charge the use-of-a-firearm offense at the outset. Thus,

like Franklin, supra, this case fits squarely under rule 3.151(c).

Indeed, the circumstances of this case are materially

indistinguishable from Franklin. There, as here, the defendant

was charged with two offenses (DUI manslaughter and leaving the

scene of an accident involving death) arising out of a single

incident (a car accident); the defendant was acquitted on one of the

counts (leaving the scene of an accident) and the jury deadlocked

on the other count (DUI manslaughter); the defendant was

subsequently recharged with the offense on which the jury

deadlocked and he was also charged with a new offense stemming

from the same incident (leaving the scene of an accident involving

injury); and, after the defendant’s motion to dismiss the new

charge pursuant to rule 3.151(c) was denied, the defendant was

convicted of the new charge. Franklin, 719 So. 2d at 939. On

appeal, we reversed the defendant’s conviction, explaining:

3The prosecutor stated: “Of course, it’s related. We could not

bring in another charge for something that’s completely

unrelated.”

4

This case fits squarely under rule 3.151(c). . . . . There

can be no argument that the charges are not ‘related

offenses,’ because they arise from the same automobile

accident and could be tried in the same court. See Fla.

R.Crim. P. 3.151(a). Moreover, it is undisputed that

appellant did not file a previous motion for consolidation;

nor did he waive his right to consolidation, and there is

no showing that the prosecution was unable, by due

diligence, to obtain sufficient evidence to warrant

charging the other offense. See Fla. R.Crim. P. 3.151(c).

Finally, although a mistrial was declared on the DUI

manslaughter charge, appellant was nonetheless tried

and acquitted on the leaving-the-scene charge; therefore,

he was tried on a charge of one related offense. Id. Under

the circumstances, the trial court erred in denying

appellant's motion to dismiss under rule 3.151(c), and the

conviction for leaving the scene must be reversed.

Id. at 940; see also Fields v. State, 743 So. 2d 92 (Fla. 5th DCA

1999) (relying on Franklin to reverse conviction for carrying a

concealed firearm charge that was based on the same incident for

which the defendant was acquitted of assault or battery while

armed). Accordingly, Franklin compels reversal of Brown’s use-of-

a-firearm conviction.

We have not overlooked the Varnum case relied on by the

State, but we find that case distinguishable. The offenses at issue

in Varnum arose out of entirely different real estate transactions

that occurred over the course of a two-year period and involved

different alleged victims. See 991 So. 2d at 919–20. The court held

that the offenses were not “related” to the offenses for which the

defendant was previously tried and acquitted because the offenses

were committed in a different manner and arose out “temporally

separate episode[s]” that were only connected by “similar

circumstances and [the defendant]’s alleged guilt in all instances.”

Id. at 921. By contrast, here, the use-of-a-firearm count arose out

of the exact same criminal episode as the robbery for which Brown

was previously tried and acquitted.

III

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In sum, because the use-of-a-firearm charge was “related” to

the robbery offense for which Brown was previously tried and

acquitted, the trial court erred in denying Brown’s motion to

dismiss that charge pursuant to rule 3.151(c). Accordingly, we

reverse Brown’s conviction and remand for entry of an order

dismissing the use-of-a-firearm charge.

REVERSED and REMANDED with instructions.

RAY and OSTERHAUS, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Andy Thomas, Public Defender, and Kevin Steiger, Assistant

Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon S. Traxler,

Assistant Attorney General, Tallahassee, for Appellee.

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