McGee v. State

• Decision Date: 07 June 1983
• Docket Number: No. AM-388,AM-388
• Citation: 435 So.2d 854
• Parties: Howard McGEE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 854

435 So.2d 854

Howard McGEE, Appellant, v. STATE of Florida, Appellee.

No. AM-388.

District Court of Appeal of Florida First District.

June 7, 1983.

On Rehearing July 29, 1983.

Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.

LARRY G. SMITH, Judge.

Appellant seeks reversal of a judgment of conviction entered upon a jury verdict finding him guilty of the offense of escape, for which he has been sentenced to an enhanced term of thirty years, to run consecutively to sentences imposed under convictions for two separate crimes. Appellant argues several grounds for reversal, including double jeopardy, rulings of the trial court allegedly improperly restricting appellant in his presentation of evidence in his defense, failure to restrict the State in its presentation of prejudicial evidence, and other trial errors. We affirm.

On October 8, 1981, capiases were issued by the Circuit Court of Duval County for the arrest of appellant in connection with some thirteen felony charges pending in seven separate criminal cases. The capiases, seven in number, identified the underlying offenses which included burglary, burglary of a conveyance, forgery, uttering a forged instrument, and robbery, and each of the seven capiases also noted "bond estreature" as cause for appellant's arrest. On November 24, 1981, appellant was arrested on each of the capiases, taken into custody and incarcerated in the Duval County Jail by Duval County Sheriff's Deputies.

On December 2, 1981, appellant was taken before a county judge in the Duval County Courthouse, in Courtroom 21, for a first appearance in connection with his arrest on the capiases. Upon being advised by appellant that his private counsel was not present, and did not know appellant was to be in court that day, the court instructed a bailiff to escort appellant to a telephone for the purpose of calling his attorney. Appellant apparently completed the call, then was returned to the courtroom where he was again seated to await further proceedings. Shortly thereafter, appellant jumped up, ran across the courtroom floor at a high rate of speed, knocked over the speaker's podium, bumped into one of the assistant public defenders, and continued at a high rate of speed down the hallway outside the courtroom. He was pursued by bailiffs from the courtroom--one of them shouting warnings to stop, and threatening to shoot--and was intercepted by another officer in front of the elevator, where a struggle ensued until appellant was finally subdued and returned to the courtroom. The presiding judge from whose courtroom appellant had escaped proceeded to immediately adjudge appellant in contempt of court, stating:

Immediately, right after he [the bailiff] let you call your lawyer, you was [sic] placed back there and then you tried to escape from this courtroom, disrupt the court, disrupted everything and you ran over a podium over there where the Public Defender was standing, just about bruised her up a little bit. So, I am going to sentence you to contempt of court for five months and 29 days in the County Jail for disrupting this court, ....

I.

Appellant first contends that his direct criminal contempt conviction bars a subsequent prosecution for escape, urging that his right to protection against double jeopardy prohibits him from being twice convicted for the same conduct. Arguing that the "Blockburger test," Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), has been expanded, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), appellant urges that the contempt and the escape are the "same" offense for double jeopardy purposes. We disagree. In State v. Carpenter, 417 So.2d 986 (Fla.1982), the court had occasion to address the double jeopardy issue, noting that if the crimes are the same, the imposition of multiple punishments is prohibited under Blockburger, supra. Further, the court stated (Id. at 987):

A single transaction can give rise to distinct offenses under separate statutes without violating the double jeopardy clause of the fifth amendment. Albernaz v. United States, 450 U.S. 333 [101 S.Ct. 1137, 67 L.Ed.2d 275], ... (1981). In determining whether separate punishment can be imposed, Blockburger requires that courts examine the offenses to ascertain whether each offense requires proof of a fact which the other does not. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. See Iannelli v. United States, 420 U.S. 770 [95 S.Ct. 1284, 43 L.Ed.2d 616], ... (1975). In Albernaz v. United States, the Court recognized that the power to define criminal offenses and to prescribe punishments to be imposed upon those found guilty of them rests wholly with the legislative branch.

The claim of double jeopardy here, whether under the traditional Blockburger test or a more expansive version argued by appellant, will not withstand the most simple analysis, for it is evident that appellant's conduct in knocking over a podium, bumping into an assistant public defender and disrupting a court proceeding amply supports a conviction for direct criminal contempt, but is immaterial to the offense of escape. Further, appellant's departure from the courtroom and his footrace down the exterior corridor until he was forcibly intercepted and restrained by law enforcement officers near the elevator, essentially establishes the escape charge (once lawful custody is established), but does not establish a direct contempt of court for courtroom disruption. In terms of "elements" of the two offenses, lawful custody is not an element of direct criminal contempt, and courtroom disruption or other interference with a judicial proceeding is not an element of escape. We think it is clear from the record of the contempt proceeding that the court found appellant in contempt "for disrupting this court," rather than because appellant escaped or attempted to escape from lawful custody. We also reject appellant's contention that subjecting appellant to the contempt and the escape charges constitutes "cruel harassment" in violation of the due process clause of the Fifth Amendment.

II.

At the commencement of the trial on April 8, 1982, appellant's counsel filed a motion to dismiss, contending that appellant was not in lawful custody on December 2, 1981, the date of his attempted escape, because the capiases upon which he was being held were improperly issued by the trial court. The written motion to dismiss alleges that the capiases were issued following appellant's failure to appear for a pretrial conference on certain of the felony charges pending against him, even though a waiver of appearance had been filed in appellant's behalf in each of the cases in which a capias was issued. He contended in the trial court, and here, that since the defendant had validly waived his appearance at the pretrial conference scheduled for October 8, 1981, the capiases issued on that date following appellant's nonappearance in court were issued illegally and without cause. Appellant's counsel argued, based upon his recollection, that on the day preceding October 8, 1981, the court had ordered him to have appellant present in court on October 8, and upon appellant's failure to appear, the capiases were issued for his arrest. The court responded, and appellant's counsel agreed, that the court had also set the cases for trial, and upon appellant's nonappearance for trial he had estreated his appearance bonds. The record does not disclose the date of the bond estreatures. However, as indicated above, all of the capiases cited "bond estreature" as one of the reasons for appellant to be taken into custody. The prosecuting attorney also argued that on the date of the alleged escape appellant was in custody on numerous cases, in addition to those involving issuance of the capiases, but that the state had elected to use the capiases to prove "lawful custody" because of the presumption of lawfulness arising from arrest on the capiases. The trial judge, being the same judge who had issued the capiases upon which appellant was arrested, denied an evidentiary hearing to establish further details bearing upon the correctness of the judge's action in ordering the issuance of the capiases as being "unnecessary."

It is clear that defense counsel's theory of defense was not that Judge Oakley (the presiding judge in this proceeding) did not issue the several capiases for appellant's arrest and detention, nor that the judge lacked general authority to issue capiases for the recommitment of defendants at liberty on bail for felony offenses for non-appearance or breach of bail bond conditions, nor that the arresting officer and the jail personnel improperly relied upon the authority of the capiases for appellant's arrest and detention, nor that appellant was in fact arrested, incarcerated, and escaped or attempted to escape from courtroom 21 of the Duval County Courthouse while he was in custody of duly authorized law enforcement officials under the authority of the capiases. The defense attempted to be asserted in the motion to dismiss and before the jury was that Judge Oakley did not have "probable cause" to order the issuance of the capiases for appellant's arrest, and, therefore, that appellant's custody, at the time of his escape, was unlawful. Defense counsel proceeded on this tack throughout the trial in his examination of the witnesses and in closing argument, despite the court's pretrial ruling that the existence of probable cause justifying the issuance of the capiases was not an issue in...