Andrews v. State, 96-4124
| Decision Date | 22 May 1997 |
| Docket Number | No. 96-4124,96-4124 |
| Citation | 693 So.2d 1138 |
| Parties | 22 Fla. L. Weekly D1296 Myles Franklin ANDREWS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Carol Ann Turner, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; William J. Bakstran, Assistant Attorney General, Tallahassee, for Appellee.
Appellant challenges an order revoking his probation. We reverse.
The State charged appellant with two violations of Condition No. 5 of his probation, which required him "to live at liberty without violating any law." He was charged with being a principal in the first degree to aggravated battery, based on an incident in which a companion shot a man with a gas-powered pellet or BB gun, and with possession of a concealed weapon, a purported chemical mace or pepper spray device that was found on his person when he was arrested.
The testimony adduced at hearing may be summarized as follows: Appellant was driving his girlfriend's car to a lawn-mowing job while a companion changed clothes in the back seat. The companion found the rifle, which had a telescope sight, in the back seat, and fired it, by accident, he claimed. The shot struck a man working in his yard, but did not seriously injure him. Appellant wanted to return to apologize, but was dissuaded by his passenger.
The victim called police and provided a description of the car; shortly thereafter appellant and his passenger were detained at a convenience store where they had stopped. Both initially denied any wrongdoing before the passenger admitted that he had fired the shot. Both were arrested, at which time the spray device was found attached to a key ring that appellant had placed in one of his pockets.
The only evidence adduced concerning the mace device was from the arresting officer, who said he saw another officer take the key ring from appellant and that the other officer told him that the key ring had a mace device attached thereto. The device itself was not introduced into evidence and the officer who seized the device did not testify. Thus, there was no evidence offered as to whether the device was, in fact, capable of shooting pepper spray or any disabling chemical.
The trial court found that appellant, by leaving the scene of the crime and by misrepresenting the facts to police, had assisted the passenger in aggravated battery, and thus had violated his probation by violating a law. The trial court properly found that the pepper mace device was a weapon but was not a concealed weapon 1 and that therefore its possession did not violate any law. The trial court did find, however, that appellant had violated another condition of his probation, Condition No. 4, which prohibited appellant from possessing any weapon. Both findings are in error.
As to the first charge, principal in the first degree to aggravated battery, the pertinent law is found in section 777.011, Florida Statutes:
Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.
At the violation hearing, the evidence was that the passenger, without a word to appellant, fired a single shot at the victim. Appellant did not stop, though he and the passenger discussed returning; he did not, however, speed up or attempt to flee. Once stopped, he denied firing a shot before the passenger admitted that it was he who had shot the rifle. 2
To convict a defendant as a principal of the first degree based, as was the case here, on circumstantial evidence:
[T]he state has to show that he (1) assisted the actual perpetrator by doing or saying something that caused, encouraged, assisted, or incited the perpetrator to actually commit the crime, and (2) intended to participate in the crime.
A.B.G. v. State, 586 So.2d 445, 447 (Fla. 1st DCA 1991) (citations omitted). Moreover, "[m]ere presence at the scene, knowledge of the crime, and flight are insufficient to justify a conviction...."
In this case, there is no evidence to rebut appellant's position that the passenger fired the shot without appellant's knowledge, let alone to show that appellant participated in any way, and no evidence that his "leaving the scene" was anything more than simply continuing on his way. Moreover, under A.B.G., flight alone...
To continue reading
Request your trial
-
Odom v. State
...that purpose." "[Probationers are entitled to notice `of what law the probationer is alleged to have violated.'" Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997) (quoting Burton v. State, 651 So.2d 793, 794 (Fla. 1st DCA 1995)). "[T]he language used in a condition of probation is ......
-
Stewart v. State, 1D05-1824.
...Gammon v. State, 778 So.2d 390, 392 (Fla. 2d DCA 2001); Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998); Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997). As we said in Meade (in regard to revocation of probation), "[b]ecause this hearsay evidence was the only evidence Appel......
-
Campbell v. State
...KAHN, BENTON, and LEWIS, JJ., concur. * While hearsay evidence may be admitted in a revocation proceeding, see Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997), probation may not be revoked solely based on hearsay evidence. See id.; see also Stewart v. State, 926 So.2d 413, 415 (F......
-
Davis v. State
...for conduct not alleged in the charging document. See, e.g., McRae v. State, 88 So.3d 384, 385 (Fla. 2d DCA 2012) ; Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997) ("[I]t is improper to find a probationer has violated a condition of his probation that he has not been charged with......