Fountain v. State

• Decision Date: 23 August 1993
• Docket Number: No. 92-570,92-570
• Citation: 623 So.2d 572
• Parties: 18 Fla. L. Weekly D1868 Ozzievelt FOUNTAIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 572

623 So.2d 572

18 Fla. L. Weekly D1868

Ozzievelt FOUNTAIN, Appellant, v. STATE of Florida, Appellee.

No. 92-570.

District Court of Appeal of Florida,

First District.

Aug. 23, 1993.

Robert A. Butterworth, Atty. Gen., Marilyn McFadden, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

The appellant, Ozzievelt Fountain, challenges his conviction for false imprisonment and aggravated assault. For the reasons discussed below, we find that appellant has waived the alleged error in the information charging him with kidnapping either of two victims. On appellant's second point, we agree that the judgment erroneously describes the offense of aggravated assault as a second degree felony. As the state concedes, aggravated assault is a third degree felony, and we are obliged to remand the case for correction of the judgment.

Appellant was charged with armed kidnapping as described in the following count of the information:

OZZIEVELT FOUNTAIN, on or about September 22, 1991, at and in Escambia County, Florida, did unlawfully and forcibly, secretly or by threat, confine, abduct, or imprison another, to-wit: Joyce Lewis or James Henderson against her will, and without lawful authority, with intent to commit or facilitate the commission of any felony, to-wit: aggravated assault, or to inflict bodily harm upon or to terrorize Joyce Lewis or another person, to-wit: James Henderson, and during the process thereof, Ozzievelt Fountain used, carried or possessed a weapon, to-wit: a semi-automatic pistol or handgun, in violation of Sections 787.01(1)(a) and 775.087, Florida Statutes.

At no time prior to trial did appellant move to dismiss this count of the information, nor did appellant raise an objection or motion at trial concerning the wording of this count.

At trial, testimony from Joyce Lewis and James Henderson established that, on the night of September 22, 1991, Henderson was baby-sitting Lewis' children at Lewis' apartment. The appellant entered the apartment asking for Lewis, and Henderson informed him that she was not at home. Apparently, Henderson had seen appellant at the apartment in the past and was aware that appellant was the father of some of Lewis' children. Appellant pointed a gun at Henderson and ordered him to sit down. Although Henderson admitted having several opportunities to escape over the course of the evening, including a 10 or 15 minute period during which appellant went to the store to buy beer, Henderson decided not to leave the children or risk escape. Shortly after appellant returned from the store, Lewis returned to the apartment. At this point, appellant took Lewis into the bathroom where he threatened her. Eventually, appellant allowed Lewis to go to the kitchen, at which time she ran from the house to flag down a passing police car. Appellant was found guilty of the lesser included offense of false imprisonment, though the general verdict did not specify whether the victim was Lewis or Henderson.

On appeal, it is argued that the jury was improperly allowed to convict appellant on less than a unanimous verdict. According to appellant, some jurors may have believed that appellant falsely imprisoned Henderson, while others may have believed that Lewis was the victim. By permitting a guilty verdict as long as the entire jury believed that appellant falsely imprisoned either Henderson or Lewis, the jury was allowed to overlook their own substantial disagreement as to the sufficiency of the evidence.

We agree with the appellant that the information is flawed as drafted, but we find that the error was waived by appellant's failure to move for dismissal. At the outset, we emphasize that nothing in this opinion should be construed as a finding on our part that this manner of drafting a charging document constitutes acceptable practice.

As a general rule, the charging of multiple offenses in a single count of an indictment or information--i.e., duplicity--is among the many defects that may be waived by failure to present a timely objection. See 14A Fla.Jur.2d, Criminal Law, Sec. 1239. However, an exception exists in those instances where one count charges two separate and distinct offenses that may be subject to different punishments; in such cases, the error may be deemed fundamental and may be asserted for the first time on appeal. See McGahagin v. State, 17 Fla. 665 (1880) (duplicity was not waived by the defendant's failure to timely challenge the indictment where, in a single count, the defendant was charged with "injuring" and "disfiguring" an ox, which acts constituted distinct offenses punishable under separate statutes); Bashans v. State, 388 So.2d 1303 (Fla. 1st DCA 1980) (duplicity constituted fundamental error where a single count charged felonies of different degrees); 12 Fla.Law and Practice, Indictments, Informations and Presentments, Sec. 42 (1960). The exception does not apply where a single count alleges alternative means of committing the same offense; in such instances the defendant's failure to challenge the charging document will constitute waiver. See Irvin v. State, 52 Fla. 51, 41 So. 785 (1906) (duplicity defect waived where count alleged alternative means of committing the same offense of keeping gaming equipment).

In the instant case, no single count of the information charged separate and distinct crimes subject to different punishments. Rather,...