Paul v. State, No. II-138

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM; BOYER, Acting C. J., and BOOTH; SMITH; SMITH
• Citation: 365 So.2d 1063
• Docket Number: No. II-138
• Decision Date: 03 January 1979
• Parties: Gregory PAUL, Appellant, v. STATE of Florida, Appellee.

Page 1063

365 So.2d 1063 Gregory PAUL, Appellant,
v.
STATE of Florida, Appellee. No. II-138. District Court of Appeal of Florida, First District. Jan. 3, 1979.

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

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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

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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 #...