Johnson v. State, No. 1D18-4528
| Decision Date | 26 March 2020 |
| Docket Number | No. 1D18-4528 |
| Citation | 293 So.3d 582 |
| Parties | Eferm Zoran JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
B.L. Thomas, J. Appellant challenges the trial court’s refusal to give jury instructions on animal cruelty as a permissive lesser-included offense. He also appeals the trial court’s imposition of discretionary fines and surcharge without individual oral pronouncement. We affirm in part and reverse in part.
Facts
During an argument with his son, Appellant chased and threatened to kill his son and his son’s dogs. Appellant grabbed his son’s puppies, stepped on some, and threw others about 100 feet. Appellant was detained by law enforcement, and an officer found two knives in Appellant’s waistline.
Appellant was charged by amended information with one count of aggravated assault with a deadly weapon, seven counts of aggravated animal cruelty, and one count of carrying a concealed weapon by a convicted felon. At trial, a veterinarian testified that she examined the puppies from the incident. One of the puppies was deceased and all but two had similar injuries which demonstrated animal cruelty caused by throwing or stomping on the puppies.
During the charge conference, Appellant requested the trial court instruct the jury on animal cruelty as a permissive lesser-included offense to aggravated animal cruelty. The trial court denied the request, ruling that it was not listed as a necessarily lesser-included offense or a permissive lesser-included offense in the standard jury instructions. The jury returned with a verdict of guilt on the lesser-included offense of improper exhibition of a weapon and four of the aggravated animal cruelty charges.
Appellant was sentenced as a habitual violent felony offender to ten years in prison with a five-year minimum mandatory for count VI (aggravated animal cruelty concerning the deceased puppy). The trial court imposed a sentence of five years in prison on the three other aggravated animal cruelty counts, concurrent to one another, but consecutive to count VI, for a total of fifteen years with a five-year minimum mandatory.
At sentencing, the trial judge asked defense counsel, "would you be willing to waive me reading the statutory authority for [the fines and cost]?" Defense counsel agreed, and the court orally pronounced a lump sum for fines and costs stating, "there’s the $971.25 total fines in court cost, $100 cost of prosecution, $100 legal assistance lien, and $50 PD application fee." The written judgment later reflected the discretionary costs and fines as $525 in fines pursuant to section 775.083, Florida Statutes, and $26.25 as the five percent surcharge required by section 938.04, Florida Statutes. Appellant filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), asserting the trial court failed to specifically pronounce the amount of the discretionary fine and surcharge. The trial court denied the motion, stating trial counsel had waived the requirement that the trial court orally pronounce the statutory authority for all fines and costs.
Analysis
Appellant argues the trial court erred by refusing to instruct the jury on animal cruelty as a permissive lesser-included offense. We disagree. In Anderson v. State , No. SC18-1059, 291 So.3d 531 (Fla. Mar. 5, 2020), the Florida Supreme Court recently reiterated that a trial judge is required to give a jury instruction on a permissive lesser-included offense only "if the following two conditions are met: ‘(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.’ " Id. (emphasis added) (quoting Khianthalat v. State , 974 So. 2d 359, 360 (Fla. 2008) ). In addition, "[t]he elements of an offense cannot be established by mere inference." Id. at 534 (quoting State v. Von Deck , 607 So. 2d 1388, 1389 (Fla. 1992) ). These requirements ensure due process and uphold the separation of powers between "the executive branch’s exclusive discretion under Florida law to prosecute or not prosecute an individual for crimes committed." Id. at 535.
Here, as in Anderson , the amended information charging Appellant with aggravated animal cruelty did not allege all statutory elements of animal cruelty. Florida’s standard jury instructions provide the...
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