De La Cova v. State, 76-1848
| Decision Date | 28 February 1978 |
| Docket Number | No. 76-1848,76-1848 |
| Citation | 355 So.2d 1227 |
| Parties | Antonio DE LA COVA, and Gary Latham, Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellants.
Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
Before PEARSON, BARKDULL and NATHAN, JJ.
This appeal is brought by Antonio De la Cova and Gary Latham, who were codefendants to an information charging them with (1) conspiracy, (2) unlawfully attempting to discharge a destructive device, (3) attempted second degree arson, (4) unlawfully possessing explosives with intent to harm, (5) possessing an explosive without a license, (6) unlawfully transporting explosives, and (7) unlawful display of a firearm. (Only De la Cova was charged under this seventh count.) During the progress of the trial, codefendant Latham withdrew his plea of not guilty and pleaded nolo contendere. The last point on this appeal which pertains to Latham is the point questioning the validity of the sentence. Both defendants were found guilty by the jury and were sentenced as set out, infra, in the portion of this opinion dealing with the sentences.
The appellants' brief presents four points. The gist of the appellants' argument under point one is that the trial court erred in failing to grant a continuance in mid-trial when the State granted immunity to the witness Miguel Peraza and announced its intention to call him as a witness. The facts upon which the motion for continuance was based are that the defendant De la Cova announced that he would rely on the defense of entrapment and would rely on Peraza, who was an informer for the F.B.I., as the active person in the conspiracy. When the defendant attempted to take Peraza's deposition, Peraza took refuge in his Fifth Amendment privilege because charges were pending against him. Upon application to the court for aid, the trial judge ruled that Peraza would be required to respond to certain deposition questions having to do with his relationship with the F.B.I. and would not be required to respond to questions concerning his participation in the conspiracy and the crimes charged.
On the first day of trial, defense counsel moved for the production of statements of Miguel Peraza that had been revealed at his deposition and made to federal agents. These statements concerned his activities in this case. The State responded that it did not possess the statements made to federal authorities. Thereupon, the court denied defense counsel's motion for their production. On the third day of trial, the State announced that because defendant De la Cova presented an entrapment defense during opening argument, the State had decided to use Peraza as a witness and, therefore, would grant him immunity. Upon motion of counsel for the defendant, the court denied a continuance to De la Cova but required the State to make Peraza available for deposition immediately. The deposition was taken and the statements made to federal authorities were secured and turned over to the defendant. The next day, counsel for defendant again moved for a continuance or a mistrial on the ground that he had not been able to have the testimony for use in cross-examination of the witness. The court denied the motions and the trial proceeded. Upon these facts, defendant claims reversible error, relying on Anderson v. State, 314 So.2d 803 (Fla. 3d DCA 1975); and Richardson v. State, 246 So.2d 771 (Fla.1971).
Our review of the record convinces us that appellant's first point does not show reversible error because there is no showing of prejudice. The record does not reveal any particular in which the defendant might have used the statements or the deposition in order to bolster his cross-examination of Peraza or to support his defense of entrapment. The denial of a motion for continuance is a matter within the sound discretion of a trial judge. See Raulerson v. State, 102 So.2d 281 (Fla.1958); Henderson v. State, 90 So.2d 447 (Fla.1956); and Kitchen v. State, 89 So.2d 667 (Fla.1956). And where this motion is made in the midst of a trial, the decision of the trial judge will not be reversed in the absence of a clear showing of an abuse of discretion. See Fla.R.Crim.P. 3.190(g)(3). If the record revealed prejudice to the defendant because of the State's change in tactics, our holding on the denial of a continuance might have been different. Prejudice cannot be presumed simply because the State used a witness known to the defendant after a late grant of immunity. A mistrial was not appropriate because the State did not disobey any rule of procedure or of fundamental fairness. Nevertheless, the situation is fraught with danger to a fair trial and each case must be judged upon its own facts in determining whether the trial judge has abused his discretion in allowing the trial to proceed. Cf. Pope v. State, 84 Fla. 428, 94 So. 865 (1923). In the present instance, the circumstances described did not deprive the defendant of any right or of a fair trial.
Appellant De la Cova's second point urges error in the court's denial of his motion for a directed verdict on count two, which charged an ". . . attempt to discharge a destructive device, in the vicinity of the structure located at 3458 Southwest 8 Street, with intent to do damage to said property, in violation of 77(7). 04 and 790.161(2), Florida Statutes . . ." and on count three, which charged an ". . . attempt to commit a crime, to-wit: ARSON IN THE SECOND DEGREE . . ." on the same structure, ". . . in violation of 77(7). 04 and 806.01(2), Florida Statutes . . ." If we were to reach these issues, we would hold that ownership of the premises described in the allegations of these statutory crimes is not an element of the respective crimes because the statute eliminates the element. 1
We hold that this point does not present reversible error because it was not raised in the trial court. A bare bones motion for directed verdict does not raise every possible claimed insufficiency in the evidence. Cf. G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1976). Here, the argument is made for the first time on appeal and ought not be considered unless it amounts to fundamental error. It clearly was not fundamental because the premises were fully described and no prejudice to the defendant could have occurred. The possibility of double jeopardy, as urged by the defendant, does not exist. Cf. Llano v. State, 271 So.2d 34 (Fla. 3d DCA 1972).
The third point urges that count two should have been dismissed upon defendant's motion because it improperly charged the defendant with an attempt to commit the crime described in Section 790.161, Florida Statutes (1975). It is argued that Section 790.161 2 is an attempt statute and that, therefore, the charge of an attempt under the general attempt statute, Section 777.04, Florida Statutes (1975), was a charge of an attempt to attempt. This argument is not effective because the language of Section 790.161, in referring to attempts, speaks only of ". . . attempt to discharge . . ." The defendant here was charged with an attempt to place or throw a destructive device. No error appears.
The fourth point challenges a part of the sentence. It is argued that the court erred in sentencing the defendants on counts two, three, four, five and six of the information. The defendants were sentenced as follows, with all sentences to run consecutively:
Count Crime De la Cova Latham
----- --------------------------------------------- ---------- -----------
I. ". . . did unlawfully and feloniously 5 years 5 years
agree, conspire, combine or confederate
with each other to commit felonies under
the laws of the State of Florida, to-wit
THE PLACING OR DISCHARGING
OR THE ATTEMPT AT DISCHARGING
OF ANY DESTRUCTIVE DEVICE
. . . ARSON, IN THE
SECOND DEGREE, . . . UNLAWFUL
POSSESSION OF EXPLOSIVES
. . . and UNLAWFUL
TRANSPORTATION OF
EXPLOSIVES . . ."
II. ". . . did unlawfully and feloniously 15 years 15 years
throw, place, discharge, or attempt
to discharge a destructive device
. . ." in contravention of Sections
777.04 and 790.161, Florida Statutes
(1975).
III. ". . . did unlawfully, willfully and 5 years 5 years
maliciously attempt to commit a crime,
to-wit: ARSON IN THE SECOND
DEGREE . . ." in contravention
of Sections 777.04 and 806.01, Florida
Statutes (1975).
IV. ". . . did unlawfully and feloniously 15 years Nolle
keep, store, possess or distribute (a) prosequi
certain explosive, to-wit: DYNAMITE,
with the intent to harm life, limb
or property . . ." in contravention
of Section 552.22, Florida
Statutes (1975).
V. ". . . did unlawfully, knowingly and 5 years 5 years
feloniously have in their possession, (a)
certain explosive, to-wit: DYNAMITE,
without having a license or permit
thereof . . ." in contravention
of Sections 552.101 and 552.22, Florida
Statutes (1975).
VI. ". . . did unlawfully, knowingly and 5 years 5 years
feloniously transport (an) explosive, to-wit:
DYNAMITE . . ." in contravention
of Sections 552.12 and 552.22,
Florida Statutes (1975).
VII. ". . . did unlawfully and feloniously 15 years Not charged
display, use, threaten or attempt to
use (a) firearm or carry a concealed
firearm, to-wit: PISTOL, while
. . . committing a felony . . ."
in contravention of Section 790.07,
Florida Statutes (1975).
The defendants first urge that the trial court erred...
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