Joseph v. State, 81-591

• Decision Date: 13 September 1983
• Docket Number: No. 81-591,81-591
• Citation: 447 So.2d 243
• Parties: Jeffrey JOSEPH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 243

447 So.2d 243

Jeffrey JOSEPH, Appellant, v.The STATE of Florida, Appellee.

No. 81-591.

District Court of Appeal of Florida Third District.

Sept. 13, 1983.

Bennett H. Brummer, Public Defender and Leon E. Sharpe, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Theda R. James and Jack B. Ludin, Asst. Attys.Gen., for appellee.

Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.^*

ON REHEARING EN BANC

DANIEL S. PEARSON, Judge.

When it appeared that a majority of the panel which heard Joseph's appeal concluded that the introduction of evidence of a crime collateral to the offense charged necessitated a reversal of Joseph's convictions, and that this conclusion directly conflicted with the earlier affirmance by a different panel of this court of the convictions of Joseph's co-defendant at trial, who had sought relief on the identical ground, seeNeal v. State, 414 So.2d 1146(Fla. 3d DCA1982), this court, on its own motion, decided to consider the above case en banc, without argument.Having now so considered the case, we reverse Joseph's conviction and remand for a new trial.

Joseph and one Billy Gene Neal were charged in an information with the sexual battery and kidnapping of a Haitian female, H.B., alleged to have occurred on August 30, 1980.By separate information, these same two defendants were charged with the same offenses said to have been perpetrated against another Haitian female, I.G., on September 5, 1980.Pursuant to Section 90.404(2)(b)1, Florida Statutes(1979), the State notified Joseph that it intended to introduce evidence of both offenses in the trial of each information.Joseph filed pretrial motions in both cases to exclude the introduction of the offense collateral to the crime charged in the particular information upon which he was to be tried.The trial court denied the motions, and, based on that denial, Joseph moved to consolidate the two cases for trial.

Joseph's primary point on appeal is, of course, that the trial court erred in permitting the State to adduce evidence of the August 30 and September 5 crimes in the same case.He contends that the separate incidents did not share a uniqueness about the perpetrator of the offense or the manner in which the offenses were committed so as to tend to establish, independently of an identification of him by the victim of the collateral crime, that he committed the crime charged.SeeSias v. State, 416 So.2d 1213(Fla. 3d DCA1982);Beasley v. State, 305 So.2d 285(Fla. 3d DCA1974).

His contention is met at the outset by the State's argument that by moving to consolidate the two cases, thus insuring the introduction of the evidence of both crimes in the same trial, Joseph has waived any objection he might have had.We do not agree.

It is clear from the record that the motion to consolidate was made only because the trial court had ruled that the collateral crime evidence would be admitted, ¹ and that the asserted error of the trial court's earlier ruling was preserved for review.To hold otherwise would be to force the defendant, the State and the court to go through two separate trials for no purpose other than to formalistically preserve an appellate point, which, in our view, would be a manifest waste of judicial time and labor.

Having decided that Joseph has not waived the point by moving to consolidate, we now address the merits.The State argues that the uniqueness shared by the offenses against H.B. and I.G. lies in the following "unusual" circumstances: in each instance the assailants approached the victim in a small car--either a Datsun or Toyota--which became the scene of the assaults; the assaults were perpetrated by two black males, one lighter than the other; on both occasions the lighter-skinned male drove the vehicle; the victims were abducted from a public street during nighttime hours; the assaults occurred in the same general area of Miami; a knife was used to threaten the victim in each case; and, finally, the victims were released after the assaults.Whatever significance might attach to these similarities pales in light of the dissimilarities between the offenses.One offense was committed at 10:15 p.m., the other at 6:00 a.m. One victim was abducted while in the company of a friend, the other was alone.H.B. was asked by the assailants to come closer to the car, the passenger of the car exited the car and abducted her.Only the passenger sexually assaulted H.B., while the driver sat indifferently on the hood of the car.I.G. was asked if she wanted a ride and if she wanted to buy jewelry, both assailants exited the car to abduct her, and both assailants sexually assaulted her.In the case of I.G., the driver peered in the window of the car and laughed while the passenger raped her.H.B.'s legs were tied and she was badly beaten during the assault; I.G. was not bound and, at most, was slapped.In the first episode there was no act of oral sex; in the second, both of the assailants demanded and received oral sex from the victim.H.B. testified that the passenger was armed with a knife and the driver unarmed; I.G. said the passenger had a gun and the driver a knife.Lastly, H.B. was offered a ride near her home when the assault concluded; I.G. was simply told she could leave.We conclude that these marked dissimilarities in the manner and method in which the crimes were perpetrated, as compared to similarities so general as to be found in a vast number of like crimes, render the evidence of the collateral crimes irrelevant, and therefore inadmissible, to establish the identity of the accused.SeeDavis v. State, 376 So.2d 1198(Fla. 2d DCA1979);Helton v. State, 365 So.2d 1101(Fla. 1st DCA1979);Banks v. State, 298 So.2d 543(Fla. 1st DCA1974);Davis v. State, 276 So.2d 846(Fla. 2d DCA1973);Franklin v. State, 229 So.2d 892(Fla. 3d DCA1969).Accordingly, we reverse the judgments of conviction and remand the cause for new and separate trials on each information, to be conducted in accordance with the views expressed in this opinion.Our decision makes it unnecessary to address the remaining points on appeal pertaining to appellant's sentence.We do, however, address the matter of Neal's convictions.

We are fully aware that the relief we have accorded Joseph cannot extend to Neal, whose appeal is not before us.Were we still within the same term of court when the mandate in Neal's case issued, we would recall the mandate and reverse his convictions as well.SeeChapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 138 So. 630(1932).But our authority to recall the mandate in Neal's case past the term in which it issued is highly questionable, if not clearly lacking.²

However, our disability to recall the mandate in Neal's case does not mean that Neal is without remedy and that his convictions must forever stand.Our system of justice, properly concerned with the finality of decisions, is flexible enough to allow that the doctrine of finality may give way "when a more compelling objective appears such as ensuring fairness and uniformity in individual adjudications."Witt v. State, 387 So.2d 922, 925(Fla.1980).

"Considerations of fairness and uniformity make it very 'difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases.' "Id. at 925.

A majority of this court, sitting en banc, has concluded that under the facts of this case, evidence of the collateral crime was inadmissible and no waiver of objection occurred.It follows, of course, that we have also concluded that the panel in Neal's case misapplied existing principles of law to the identical facts.We have, however, announced no new principle of law; and, since no change of law is involved, we think that the stringent requirements for collateral attack laid down in Witt v. State, supra, the concern of which was the retroactive application of a new rule of law, need not be met. ³

Witt simply determined "which 'changes of law' will be cognizable under this state's post-conviction relief machinery."Id. at 928.Absent a change of law, Witt is no impediment to Rule 3.850 relief, and such relief is available, as it has always been, to correct fundamental defects which inherently result in a miscarriage of justice and present exceptional circumstances justifying collateral relief.SeeDavis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109(1974);Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417(1962).Thus, presented with a situation not unlike the one at bar, the Court of Appeals for the Second Circuit, in United States v. Loschiavo, 531 F.2d 659(2d Cir.1976), affirmed the district court's order vacating the defendant's conviction.Loschiavo had been convicted of bribing one Morales, a deputy director of the New York Model Cities Administration.He claimed at trial that since Morales was an employee of New York City, rather than the federal government, Morales was not therefore a federal official within the meaning of the federal bribery statute.On direct appeal, Loschiavo's conviction was affirmed.⁴ Shortly thereafter, the Second Circuit reversed the conviction of Del Toro and another defendant who had been separately accused of bribing Morales.The reversal was based on the ground that Morales was not a federal official, and thus, no federal crime occurred.In affirming the grant of collateral relief to Loschiavo, the court stated:

"The injustice of the case is sharply pointed up by reflecting that it was the same man, Morales, who received similar bribes in like circumstances from both Del Toro and Loschiavo.If then, this Court denied the petition and permitted the conviction of Loschiavo to stand, after it had reversed the conviction of Del Toro on the ground that the jury had been charged that it...