Paul v. State, II-138

Decision Date03 January 1979
Docket NumberNo. II-138,II-138
Citation365 So.2d 1063
PartiesGregory PAUL, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael J. Minerva, Public Defender, Michael M. Corin and Louis G. Carres, Asst. Public Defenders, for appellant.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.

PER CURIAM.

This is an appeal from judgments of conviction entered on jury verdicts finding the appellant guilty: (1) As to victim # 1 (case # 77-425), of attempted sexual battery and threatening to use force or violence likely to cause serious personal injury; (2) As to victim # 2 (case # 77-560), of sexual battery and threatening to use force or violence likely to cause serious personal injury. Sentences were imposed of ten years on offense (1) and twenty-five years on offense (2), the sentences to run concurrently. As to victim # 3, the jury returned a verdict of not guilty on charges of battery and attempted sexual battery.

The question presented is whether the trial court abused its discretion in granting, over the appellant's objection, the State's motion for consolidation for trial of the charges as to all three victims. The charges as to victims 2 and 3 were joined in a single information, without objection.

Florida Rules of Criminal Procedure, Rule 3.151, states the basic guidelines for consolidation for trial of offenses charged in two or more informations, as follows:

"(a) For purposes of these Rules, two or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on two or more connected acts or transactions.

(b) Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant Or by the state. 1 The procedure thereafter shall be the same as if the prosecution were under a single indictment or information . . ." (e. s.)

The trial court has discretion as to whether a motion for consolidation made in accordance with the foregoing rule shall be granted. The general rule is stated as follows: 2

"In any case, the propriety of trying together several indictments or informations against the same accused over his objection rests in the sound discretion of the trial court, which has the obligation to safeguard not only the rights of the government but also of the accused and to see that such rights are not jeopardized . . ."

In Ashley v. State, 265 So.2d 685, 688 (Fla.1972), the Florida Supreme Court held:

"It is well recognized that the consolidation for trial of criminal cases rests within the sound discretion of the trial court. Baker v. Rowe, 102 Fla. 622, 136 So. 681; Hall v. State (Fla.) 66 So.2d 863 . . ."

This Court in Blackwelder v. State, 100 So.2d 834 (Fla. 1st DCA 1958) held:

"Trial judges have discretionary power to order consolidation of criminal cases involving two or more informations relating to similar or connected offenses. Hall v. State, Fla., 66 So.2d 863 . . ."

Factors properly considered in ruling on a motion to consolidate include, but are not limited to, similarity of facts and issues, factors indicating a common scheme or a continuing course of conduct under a single plan or that the offenses grew out of the same chain of circumstances. 3 The party objecting to the consolidation must show prejudice resulting from the granting of the motion.

Here, the motion of the State for consolidation demonstrated that the informations charged related acts and we find no abuse of discretion in granting that motion. We note that each of the three crimes was committed at approximately 5 a. m. on a Saturday morning on an upper floor of a girls' dormitory; that the assailant waited for each victim inside or in the immediate vicinity of the dormitory shower room and that his threats and actions toward each victim bore significant similarities. These circumstances, stated in the State's motion were sufficient to indicate a common plan and perpetrator connecting the offenses.

Victim # 1 was attacked on April 9 in McGuinn Hall on the FAMU campus as she was leaving the shower room. By April 12, appellant was a suspect and he was arrested April 14. Local law enforcement officials were unaware that appellant was on 10-year probation for aggravated battery committed in another part of the state, and he was admitted to bail. On May 14, while appellant was out on bond, and released from custody, victims # 2 and # 3 were attacked on the FSU campus in shower room areas in DeGraff and Gilchrist dormitories, respectively. Six days later, on May 20, victim # 2 identified appellant as her assailant, picking him out of a group of people at a presentation at the FAMU campus auditorium. Appellant was arrested the following day. In addition to their Independent identifications of appellant prior to trial, victims # 1 and # 2 testified at trial and each withstood cross-examination without significant impeachment as to the identity of the assailant.

Victim # 3 was never able to identify her assailant other than by general description and clothing worn. The jury found this evidence insufficient and acquitted appellant of the charges in connection with victim # 3.

No contention is made here that the evidence was insufficient to support the convictions, or that any error, other than consolidation, occurred at trial. Nevertheless, we have reviewed the transcript and record in this case and find that the case was well and fairly tried, with the evidence overwhelmingly supporting the verdicts of the jury.

The other point on appeal is the alleged abuse of discretion by the trial court in failing to certify appellant for examination and hearing pursuant to Florida Statute Chapter 917 as a mentally disordered sex offender. No effort was made by appellant to establish the criteria of § 917.13(1) and we find no abuse of discretion in the trial court's ruling on this point.

Accordingly, the judgments below are AFFIRMED.

BOYER, Acting C. J., and BOOTH, J., concur.

SMITH, J., dissents.

SMITH, Judge, dissenting:

Paul appeals from convictions in the Circuit Court of Leon County on information No. 77-425, charging attempted sexual battery by vaginal or anal rape of a young woman resident of a Florida A & M dormitory early in the morning of April 9, 1977, and on count one of information No. 77-560, charging sexual battery by vaginal and anal rape of another young woman resident of a Florida State University dormitory about 5:00 a. m. on May 14, 1977. Counts two and three of No. 77-560 charged attempted sexual battery and battery of still another young woman visitor to another Florida State dormitory on the same early morning, May 14, 1977; and on counts two and three, lacking positive identification testimony, the jury acquitted Paul.

The informations were consolidated for trial on motion of the State, over objection by the defendant. There is no question here of the propriety of charging and trying together, in Case No. 77-560, the sexual offenses committed within an hour on different victims in nearby FSU dormitories. At issue is the propriety of consolidating Paul's trial for a sexual offense committed on April 9 with those committed May 14. I dissent from the court's decision which apparently holds that consolidation was authorized by Fla.R.Crim.P. 3.151.

Rule 3.151(b) provides that two or more informations "charging related offenses" shall be consolidated on motion. Subsection (a) defines "related offenses" as those which are triable in the same court and are "based on the same act or transaction or on two or more connected acts or transactions." In my view the charges of sexual offenses committed on April 9 and on May 14 were not...

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  • Fotopoulos v. State, 77016
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    • 15 Octubre 1992
    ...'connected' only by similar circumstances and the accused's alleged guilt in both or all instances." Paul [v. State, 365 So.2d 1063, 1065-66 (Fla. 1st DCA 1979) (Smith, J., dissenting), adopted in part, 385 So.2d 1371, 1372 (Fla.1980).] Courts may consider "the temporal and geographical ass......
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    ...... episodes, separated in time, which are 'connected' only by similar circumstances and the accused's alleged guilt in both or all instances." Paul [v. State, 365 So.2d 1063, 1065-66 (Fla. 1st DCA 1979) . Page 1030 . (Smith, J., dissenting), adopted in part, 385 So.2d 1371, 1372 (Fla.1980) ]. ......
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    ......State, 568 So. 2d 896, 899 (Fla. 1990) (alteration in original) (quoting Paul v. State, 365 So. 2d 1063, 1065 (Fla. 1st DCA 1979) (Smith, J.,. Page 18. dissenting)). The phrase "connected acts or transactions" also appears in ......
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