Bierer v. State, No. 90-1526

CourtCourt of Appeal of Florida (US)
Writing for the CourtFERGUSON
Citation582 So.2d 1230
PartiesMichael BIERER, Appellant, v. The STATE of Florida, Appellee. 582 So.2d 1230, 16 Fla. L. Week. D1833
Docket NumberNo. 90-1526
Decision Date16 July 1991

Page 1230

582 So.2d 1230
Michael BIERER, Appellant,
v.
The STATE of Florida, Appellee.
No. 90-1526.
582 So.2d 1230, 16 Fla. L. Week. D1833
District Court of Appeal of Florida,
Third District.
July 16, 1991.

Bennett H. Brummer, Public Defender, and Robert Kalter, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Joan L. Greenberg, Asst. Atty. Gen., for appellee.

Before NESBITT, FERGUSON and LEVY, JJ.

FERGUSON, Judge.

Bierer, the appellant, was convicted of lewd assault, two counts of battery, and one count of attempted battery on three second and third grade girls who were under his care or supervision. Two of the victims are his stepdaughters. The third victim is a neighborhood friend of the stepdaughters who frequented the appellant's home every day. The main issue on appeal is whether the court's failure to sever the offenses allegedly committed on stepdaughters S.V. and J.V., as charged in counts II, III, and IV of the five-count information, with the offenses allegedly committed on the stepdaughters' friend, G.S., as charged in counts I and V, was erroneous and prejudicial. 1

Page 1231

Bierer contends that his motion to sever should have been granted because the offenses occurred at different times and places and involved different victims. In response, the State argues that the offenses were connected in an episodic sense because (1) the involvement of more than one victim does not preclude joinder, (2) the offenses were continuous in nature and overlapping during a seventeen-month period, and (3) the offenses usually occurred in the defendant's home, and were committed in the same fashion. Further, the State contends that even if joinder was not proper, the appellant was not prejudiced because, in a separate trial for the offenses committed against G.S., the evidence of the offenses committed against stepdaughters S.V. and J.V. would have been admissible to show a general pattern, motive, intent or absence of mistake.

We agree with the appellant that his argument for severance is supported by Wallis v. State, 548 So.2d 808 (Fla. 5th DCA 1989), and Ellis v. State, 534 So.2d 1234 (Fla. 2d DCA 1988). 2 It was held in those cases that the offenses were not so connected in an episodic sense to justify consolidation. See Fla.R.Crim.P. 3.151. In Wallis the three victims were sisters. As grounds for reversing the convictions, the court ruled that "[t]he acts charged in each information related to a different victim and an entirely separate and different factual event than that charged in each other information." 548 So.2d at 809. In Ellis the court concluded that the acts committed against two of the victims were not connected in the episodic sense to the act allegedly committed against a third victim where the evidence showed only that the acts "were sex offenses occurring within the same two month period in defendant's home, the victims knew each other, and the defendant was allegedly guilty." 534 So.2d at 1236. In neither case, however, did the courts subject...

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6 practice notes
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • 15 septembre 1993
    ...cases. 5 See, e.g., Adkins v. State, 605 So.2d 915 (Fla. 1st DCA1992); Gould v. State, 558 So.2d 481 (Fla. 2d DCA1990); Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA), rev. denied, 591 So.2d 180 In recognition of the less rigid standard of similarity, this court has ruled that evidence of di......
  • Hallberg v. State, 91-03268
    • United States
    • Court of Appeal of Florida (US)
    • 5 mai 1993
    ...that such custody can occur on a temporary basis. See also Vandiver v. State, 578 So.2d 1145 (Fla. 4th DCA 1991); Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA 1991), rev. denied, 591 So.2d 180 All of the cases seem to conclude that the statutory terms "familial or custodial" shoul......
  • Roark v. State, No. 92-380
    • United States
    • Court of Appeal of Florida (US)
    • 22 juin 1993
    ...defendant's home, the victims knew each other, and the defendant was allegedly guilty." 534 So.2d at 1236; see also Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA1991) (motion to sever should have been granted where offenses occurred at different times and places and involved different v......
  • State v. Rawls, No. 82793
    • United States
    • United States State Supreme Court of Florida
    • 27 octobre 1994
    ...GRIMES, Chief Justice. We review Rawls v. State, 624 So.2d 757 (Fla. 1st DCA 1993), because of its conflict with Bierer v. State, 582 So.2d 1230 (Fla. 3rd DCA), review denied, 591 So.2d 180 (Fla.1991). We have jurisdiction under article V, section 3(b)(3) of the Florida Page 1351 Rawls was ......
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6 cases
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • 15 septembre 1993
    ...cases. 5 See, e.g., Adkins v. State, 605 So.2d 915 (Fla. 1st DCA1992); Gould v. State, 558 So.2d 481 (Fla. 2d DCA1990); Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA), rev. denied, 591 So.2d 180 In recognition of the less rigid standard of similarity, this court has ruled that evidence of di......
  • Hallberg v. State, 91-03268
    • United States
    • Court of Appeal of Florida (US)
    • 5 mai 1993
    ...that such custody can occur on a temporary basis. See also Vandiver v. State, 578 So.2d 1145 (Fla. 4th DCA 1991); Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA 1991), rev. denied, 591 So.2d 180 All of the cases seem to conclude that the statutory terms "familial or custodial" should be const......
  • Roark v. State, No. 92-380
    • United States
    • Court of Appeal of Florida (US)
    • 22 juin 1993
    ...in defendant's home, the victims knew each other, and the defendant was allegedly guilty." 534 So.2d at 1236; see also Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA1991) (motion to sever should have been granted where offenses occurred at different times and places and involved different vic......
  • State v. Rawls, No. 82793
    • United States
    • United States State Supreme Court of Florida
    • 27 octobre 1994
    ...GRIMES, Chief Justice. We review Rawls v. State, 624 So.2d 757 (Fla. 1st DCA 1993), because of its conflict with Bierer v. State, 582 So.2d 1230 (Fla. 3rd DCA), review denied, 591 So.2d 180 (Fla.1991). We have jurisdiction under article V, section 3(b)(3) of the Florida Page 1351 Rawls was ......
  • Request a trial to view additional results

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