Braham v. State, 4D99-0734.
| Decision Date | 01 March 2000 |
| Docket Number | No. 4D99-0734.,4D99-0734. |
| Citation | 766 So.2d 297 |
| Parties | Lance BRAHAM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, West Palm Beach, and Eric Gottlieb, Special Assistant Public Defender, New York, New York, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.
Appellant, Lance Braham ("Braham"), appeals his convictions for felony causing bodily injury, attempted second degree murder, robbery with a firearm, and grand theft of an automobile. Braham raises numerous issues on appeal, only two of which merit discussion: (1) whether the record contained sufficient evidence to support a conviction for felony causing bodily injury, and (2) whether Braham's protection against double jeopardy was violated when he was convicted of attempted second degree murder and felony causing bodily injury.
On May 15, 1998, Bruce Montague ("the victim") entered the bathroom at a gas station in Pompano Beach. Braham followed the victim into the bathroom, placed a gun to the back of his head, and forced him to the floor. Braham robbed the victim of his money, cellular telephone, and car keys then threatened to kill the victim if he did anything. After robbing the victim, Braham exited the bathroom and entered the victim's vehicle that was parked outside. Braham was unable to start the victim's vehicle due to its anti-theft device.
When the victim exited the bathroom, he saw Braham in the vehicle and began screaming, running around, and waving his hands in an attempt to get assistance. As the victim was running towards a door leading into the gas station store, Braham fired a shot at the victim. The shot shattered a passenger's side window and the bullet grazed the victim's arm. After shooting the victim, Braham exited the vehicle and fled on foot. The police subsequently conducted a search of the surrounding area and Braham was apprehended by a K-9 officer.
The state charged Braham with attempted first degree murder, felony causing bodily injury, robbery with a firearm, and attempted carjacking. At trial, Braham argued the entire criminal episode was one transaction and that double jeopardy barred the state from charging him for a robbery inside the bathroom and the attempted carjacking outside. The state argued that: (1) Braham completed the robbery in the bathroom after he took the items and exited, and (2) the events occurring outside of the bathroom constituted separate offenses. The trial court agreed with the state and properly rejected Braham's double jeopardy argument. See McKinney v. State, 579 So.2d 80, 84 (Fla. 1991). However, the trial court accepted Braham's argument that the attempted carjacking charge should be reduced to the lesser included offense of grand theft auto and reduced the charge accordingly.
In his first point on appeal, Braham argues there was insufficient evidence to support a conviction for felony causing bodily injury because grand theft auto is not an enumerated offense that could support a conviction under section 782.051(1), Florida Statutes (1997). According to section 782.051(1), Florida Statutes (1997):
Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an act that causes bodily injury to another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked in level 9 of the sentencing guidelines. Victim injury points shall be scored under this subsection.
Of the felonies enumerated in section 782.04(3), only carjacking and robbery are relevant to this case. See § 782.04(3), Fla. Stat. (1997). Braham claims that because grand theft auto is not an enumerated offense under section 782.04(3), his conviction of felony causing bodily injury under section 782.051(1) was erroneous.
The state argues the robbery in the bathroom continued after Braham exited and provided the necessary enumerated offense for the felony causing bodily injury charge. Although an act can be deemed to be in the course of committing a robbery if it occurs in the flight after the commission of the robbery, the state successfully argued below that the robbery was completed in the bathroom. See §§ 812.13(3)(a) & (b), Fla. Stat. (1997). The trial court's acceptance of the state's argument that the robbery was completed in the bathroom allowed the state to avoid Braham's double jeopardy claim that the episode was a continuous series of events that required the robbery and carjacking charges to merge together into one transaction.
Despite the fact that the trial court accepted the state's argument on this issue, the state now takes the position that the robbery was not completed in the bathroom but continued after Braham exited the room. However, "a party may not invite error and then be heard to complain of that error on appeal." Pope v. State, 441 So.2d 1073, 1076 (Fla.1983). Because the state argued below that the robbery in the bathroom and the events occurring outside were separate and distinct, its contention on appeal that the robbery was continuous and furnished the requisite enumerated offense for the felony causing bodily injury charge must fail.
Without an enumerated felony to base the felony causing bodily injury charge on, the state failed to prove one of the elements of the charge it brought under section 782.051(1). Thus, Braham claims his conviction and sentence on the felony causing bodily injury charge must be reversed. However, section 924.34, Florida Statutes (1997), states:
When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.
The record clearly indicates that the state proved Braham committed a felony causing bodily injury under section 782.051(2), Florida Statutes (1997). A felony causing bodily injury under section 782.051(2) is not a lesser included offense of a felony causing bodily injury under section 782.051(1) because each crime contains different elements. However, the question of whether a felony causing bodily injury charge pursuant to section 782.051(2) is a lesser statutory degree of the offense brought under section 782.051(1) must be addressed.
Although a felony causing bodily injury is a...
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Jones v. Sec'y
...the other subsections of section 782.051 are accepted as varieties of the offense of Felony causing bodily injury, see Braham v. State, 766 So.2d 297, 300 (Fla. 2000), the trial court determined that because Petitioner was improperly charged, he could not be subjected to the greater punishm......
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...See Cox v. State, 819 So.2d 705, 715 (Fla.2002), cert. denied 537 U.S. 1120, 123 S.Ct. 889, 154 L.Ed.2d 799 (2003); Braham v. State, 766 So.2d 297, 299 (Fla. 4th DCA 2000); Castle v. State, 305 So.2d 794, 797 (Fla. 4th DCA 1974). Moreover, where the trial court sustained the defense's objec......
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Rodriguez v. State, CASE NO. 3D01-2332.
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