Nicholson v. State
| Decision Date | 19 April 2000 |
| Docket Number | No. 4D99-0113.,4D99-0113. |
| Parties | Kyle NICHOLSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
On evidence that appellant threw a brick through the window of the patio door at the rear of a dwelling, then ran to the front of the dwelling where he threw a brick through a front window, thereby putting the dwelling's occupant in fright, the jury found appellant guilty of two identically worded counts of throwing a deadly missile into a dwelling and one count of aggravated assault on its occupant. We affirm the judgment entered on the jury's verdict.
Appellant argues that under the wording of section 790.19, Florida Statutes, proscribing the throwing of "any" missile into a private building, the two discrete acts should be treated as a single offense on the authority of such cases as Wallace v. State, 724 So.2d 1176 (Fla. 1998); Hill v. State, 711 So.2d 1221 (Fla. 1st DCA 1998); Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990) approved in part, quashed in part 590 So.2d 404 (Fla. 1991); State v. Watts, 462 So.2d 813 (Fla. 1985); Grappin v. State, 450 So.2d 480 (Fla.1984). The cited cases involved either what was clearly a single act on the part of the defendant, as in resisting arrest with more than one officer involved, or in a single possession of more than one article of contraband. The "any/a" dichotomy need not concern us here, as the two acts were clearly separate in both time and space such as to be properly considered as two separate offenses. See, e.g., Woods v. State, 615 So.2d 197 (Fla. 1st DCA 1993)
; State v. Thomas, 487 So.2d 1043 (Fla. 1986); Kelly v. State, 552 So.2d 206 (Fla. 5th DCA 1989). The bricks were thrown at discrete times and from discrete locations. It clearly required separate intent to throw a brick through the patio door at the rear of the house and then, after running to the front of the house, to throw a brick through a front window.
Appellant also contends that because Counts I and II were identically worded, his conviction on both violates his protection against double jeopardy and, thus, constitutes fundamental error, citing in support of this argument Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982). In that case the defendant was convicted on two identically worded counts. On appeal, the court vacated one of the counts on double jeopardy principles because neither the charging document nor the state's bill of particulars distinguished between the facts of the two offenses, nor did the evidence adduced at trial. In Collins v. State, 489 So.2d 188 (Fla. 5th DCA 1986), involving convictions on each of two identically worded counts of an information, the court upheld both convictions against a claim of double jeopardy violation, distinguishing Miles on the grounds that in Collins the evidence clearly differentiated between the two counts. Here, as discussed above, the evidence at trial clearly distinguished between the two separate offenses, and on the basis of that proof we conclude, as did the Collins court, that double jeopardy considerations are not implicated. Furthermore, it should be noted that when appellant neither filed a pretrial motion to dismiss nor requested a bill of particulars, he waived the State's failure to factually differentiate between the two counts.1 See Collins v. State, 489 So.2d 188 (Fla. 5th DCA 1986)
.
Appellant sought by motion in limine to suppress certain evidence relating to a collateral crime allegedly committed by him, evidence which was apparently relevant to a count of stalking upon which he was acquitted at trial. The motion was denied, and at trial the evidence came in without objection. Notwithstanding his acquittal on the stalking count, appellant now argues here that the court erred in allowing the evidence because it failed to establish...
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Lee v. State
...record to determine whether appellant's convictions were based on offenses occurring in a single criminal episode); Nicholson v. State , 757 So.2d 1227 (Fla. 4th DCA 2000) (holding that the defendant's convictions under identically worded counts of throwing a deadly missile into a dwelling ......
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Gammage v. State
...the events constituted separate criminal episodes and so multiple punishments are permissible. The State cites to Nicholson v. State, 757 So. 2d 1227 (Fla. 4th DCA 2000), in support of its position. In Nicholson, the defendant was charged with two counts of throwing any missile into a dwell......
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...by the jury for each of those violations, the defendant's argument on this issue must fail. Closely on point is Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000), in which the court, dealing with a case in which separate counts were not only overlapping as here, but actually identical,......
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