Freudenberger v. State

• Decision Date: 27 October 2006
• Docket Number: No. 2D04-5651.,2D04-5651.
• Parties: Karl FREUDENBERGER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

940 So.2d 551

Karl FREUDENBERGER, Appellant, v. STATE of Florida, Appellee.

No. 2D04-5651.

District Court of Appeal of Florida, Second District.

October 27, 2006.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Karl Freudenberger was convicted and sentenced for three offenses that he committed against a Lutheran church: arson in the second degree, criminal mischief to a place of worship, and burglary of a structure. Mr. Freudenberger's sentences on the arson and burglary charges were enhanced under section 775.085, Florida Statutes (2003), commonly referred to as Florida's "Hate Crimes Statute." We affirm the judgments. However, because the jury did not make specific findings of fact to support the enhanced sentences, we reverse the sentences on the arson and burglary convictions and remand for resentencing.

I. THE PROCEEDINGS IN THE CIRCUIT COURT

The State charged Mr. Freudenberger with committing three offenses against the Apostles Lutheran Church located in Brandon: arson in the second degree, section 806.01(2), a second-degree felony (count one); criminal mischief to a place of worship resulting in damage greater than $200, section 806.13(2), a third-degree felony (count two); and burglary of a structure, section 810.02(4)(a), a third-degree felony (count three). The State sought to enhance the penalty for the arson and burglary offenses under section 775.085. The trial court gave the jury the 1997 version of the standard instruction concerning the requested enhancement. See Fla. Std. Jury Instr. (Crim.) 3.3(f).¹ The jury returned guilty verdicts on the underlying offenses. The trial court adjudged Mr. Freudenberger to be guilty and imposed concurrent sentences as follows:

Count one: arson in the second degree, thirty years.

Count two: criminal mischief to a place of worship resulting in damage greater than $200, five years.

Count three: burglary of a structure, fifteen years.

The length of the sentences for the arson and burglary offenses reflected the reclassification of these felonies to the felony of the next higher degree in accordance with section 775.085.

II. THE ISSUES

On appeal, Mr. Freudenberger raises two issues. First, he argues that the trial court erred in denying his request for a jury instruction on the insanity defense. This argument is without merit, and we affirm Mr. Freudenberger's convictions on the underlying offenses without further discussion.

Second, Mr. Freudenberger argues that the trial court erred in enhancing the degrees of the offenses on the arson and burglary charges under section 775.085, the Hate Crimes Statute. The statute provides, in pertinent part:

(1)(a) The penalty for any felony ... shall be reclassified as provided in this subsection if the commission of such felony . . . evidences prejudice based on the . . . religion . . . of the victim:

. . . .

3. A felony of the third degree is reclassified to a felony of the second degree.

4. A felony of the second degree is reclassified to a felony of the first degree.

. . . .

(3) It is an essential element of this section that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated in this section.

Mr. Freudenberger advances two grounds in support of his challenge to the enhancement in the degrees of the arson and burglary offenses under this statute: (1) the information failed to allege a factual predicate for the enhancement² and (2) the jury's verdict did not contain sufficient findings of fact to support the enhancement. Although we are not persuaded by the first ground, we agree with the second. We will discuss each of Mr. Freudenberger's arguments on this point separately.

III. DISCUSSION

A. The Adequacy of the Information

Mr. Freudenberger concedes that the information supports a judgment of conviction on all counts. Instead, he argues that the information does not "properly allege the enhancement" and thus does not adequately put him on notice of the State's intent to pursue an enhanced sentence under section 775.085. The State responds that "[t]he information . . . does, in fact, precisely track the language of the statute." (Emphasis added.) Based on this claim of linguistic precision, the State concludes that Mr. Freudenberger "was properly notified of the charges." Thus the initial question we address is whether the statutory language and the language of the charging document are identical in their form or in their effect.

We begin by comparing the pertinent statutory language with the enhancement allegations contained in the information:

[Statute:] The penalty for any felony . . . shall be reclassified as provided in this subsection if the commission of such felony . . . evidences prejudice based on the . . . religion . . . of the victim.

§ 775.085(1)(a) (emphasis added).

[Information] ... and during the commission of this [felony] did evidence prejudice based on the religion of APOSTLE'S [sic] LUTHERAN CHURCH.

(Emphasis added.) We also note that the information included a reference to section 775.085 by the statute number.

The State's claim of a precise correspondence between the statutory language and the language of the information will not withstand examination. We perceive a significant distinction between the use of the conjunction "if" in the statute and the employment of the preposition "during" in the information. We are guided in these grammatical investigations by the teaching of our supreme court in State v. Stalder, 630 So.2d 1072 (Fla.1994). In Stalder, the court adopted a limiting construction of section 775.085. In accordance with this limiting construction, the application of the statute is restricted to circumstances where the commission of the crime itself evidences prejudice; the mere exhibition of prejudice during the commission of the crime is insufficient to warrant enhancement of the offense. Id. at 1076-77. Put differently, the statute applies only to bias-motivated crime, i.e., a crime wherein the perpetrator selects the victim because of one or more of the victim's attributes delineated in the statute. Id. In its opinion, the court contrasted bias-motivated crime with a crime during which bias is merely exhibited. Id. The former is subject to the enhanced penalty feature of the statute while the latter is mere expression, which is protected speech. Id. Hence the State's use of the word "during" in the information arguably describes conduct that is not subject to reclassification under the statute based on the limiting construction adopted in Stalder.

Expanding on this theme, Mr. Freudenberger argues that the information does not allege conduct that would invoke the enhancement provisions of section 775.085 because the language used failed to allege that he selected the church as his victim because of its Lutheran faith. In support of his argument, Mr. Freudenberger relies on several decisions that have addressed discrepancies between the allegation of a sentencing enhancement for the use of a firearm in the charging document and the imposition of a greater enhancement at the sentencing of the defendant for the discharge of a firearm. These cases have arisen in the context of section 775.087(2)(a), the "10-20-Life Statute." In one of these cases, we said that "[t]he grounds for enhancement of a sentence must be charged in the information" and that "neither the jury's finding that the firearm was discharged nor the inclusion of the statute number in the information cures the defect in the information." Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004) (concluding that "[a] firearm may be used without being discharged; therefore, an allegation of `use' will not sustain an enhancement for discharging a firearm under 775.087(2)(a)(2)"); see also Adams v. State, 916 So.2d 36, 37 (Fla. 2d DCA 2005) (following Whitehead); Davis v. State, 884 So.2d 1058, 1060 (Fla. 2d DCA 2004) (noting that "the minimum terms mandated ... cannot be legally imposed unless the statutory elements are precisely charged in the information") (emphasis added); Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004) (reversing life sentence imposed for discharge of a firearm with the infliction of great bodily harm under section 775.087(2)(a)(3) where the information alleged use of a firearm); Jackson v. State, 852 So.2d 941 (Fla. 4th DCA 2003) (reversing life sentence imposed for discharge of a firearm with the infliction of great bodily harm under section 775.087(2)(a)(3) where the information alleged that the defendant carried a firearm). Based on these decisions, Mr. Freudenberger contends that the grounds for a bias-motivated penalty enhancement were not alleged in the information. He further contends that this defect cannot be cured by the inclusion of the statute number in the information, by the giving of proper instructions to the jury, or by a sufficient finding of fact in the jury's verdict.

While the cases on which Mr. Freudenberger relies are compelling, they are also distinguishable. In each of the cases cited, the State's information alleged the use of a firearm, but the trial court imposed a sentence enhancement appropriate for the discharge of a firearm—a specific and important difference in the application of the minimum terms mandated by section 775.087(2)(a). The use of a firearm requires a ten-year minimum sentence under section 775.087(2)(a)(1), while the discharge of a firearm requires a twenty-year minimum under section 775.087(2)(a)(2). Furthermore, if death or the infliction of great bodily harm results from the discharge of a firearm, then section 775.087(2)(a)(3) requires a twenty-five-year minimum sentence. The requirement in Rogers, Adams, Whitehead, Dav...