Spivey v. State, 87-1567
| Decision Date | 07 November 1988 |
| Docket Number | No. 87-1567,87-1567 |
| Citation | 13 Fla. L. Weekly 2452,533 So.2d 306 |
| Parties | 13 Fla. L. Weekly 2452 Richard A. SPIVEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Helen P. Nelson, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal from a judgment and sentences imposed for one count of attempted sexual battery and two counts of exposure of sexual organs. Appellant contends the court erred in denying his motion to sever, in finding him to be an habitual offender and in failing to award credit for time served. We affirm in part and reverse in part.
On the afternoon of April 10, 1987 the appellant exposed himself to a 19-year-old University of Florida student who was sunbathing on the lawn outside of an apartment building in southwest Gainesville. According to the student she first noticed the appellant walking nearby, apparently just looking around the apartment complex. A few moments later she looked up and saw appellant standing some 20 feet away, facing her with his pants pulled down, masturbating. She screamed at him, whereupon he pulled up his pants and ran away toward the complex parking lot. She ran to the corner of her building where she was able to observe and obtain a description (including a partial tag number) of appellant's car.
On the same date later that evening appellant exposed himself to a 27-year-old housewife who was shopping at Butler Mall, a shopping center in southwest Gainesville. The housewife's testimony was not entirely clear as to where she was when she first noticed appellant. It appears she was walking along either the sidewalk in front of the stores or on the edge of the median in the street which runs in front of the stores when appellant drove his car past her on her right and then stopped ahead of her. As she approached his car and started to walk past it on its left side, appellant opened his door, partially blocking her path. When she looked down she saw his pants were around his knees and he was holding his penis with his right hand. He grabbed her arm with his left hand and said something to the effect that he only wanted her to perform oral sex on him. Being understandably flustered she did not think to scream but instead pulled away and said something about such sex acts not being a good idea with AIDS going around. She then walked to the nearest store but as she was about to enter she thought to turn and wave to appellant in a manner that would suggest that he should wait for her. She then pretended to buy something near the front of the store while telling the store clerks to call the police. Appellant waited a few minutes but when she did not come back out he left. The housewife and the store personnel subsequently furnished the police with a description of the appellant and his car, including tag number. Appellant was found and arrested approximately 10 days later.
The original information charged three offenses in connection with appellant's conduct in relation to the housewife: attempted sexual battery, false imprisonment, and exposure of sexual organs. During the course of discovery, the state filed notice of intent to adduce "Williams rule" 1 evidence concerning the offense against the student. When the appellant responded with a motion to exclude the "other crimes" evidence the state amended its information so as to charge the single exposure of sexual organs offense against the student together with the three charged offenses against the housewife. Appellant then moved to sever on grounds that the offenses were not connected, but the motion was denied after the judge concluded that the offenses were sufficiently similar and "close enough" so that either could be used as Williams rule evidence at the trial of the other, and that therefore it was proper to try them together.
The jury found appellant guilty of attempted sexual battery and of the two exposure of sexual organs charges, but not guilty of false imprisonment. After trial, but prior to sentencing, the state moved to have appellant sentenced as an habitual offender. At the sentencing hearing the state produced a guidelines scoresheet reflecting 437 points and a recommended sentence of 20 years (17-22). Appellant objected to the motion to sentence him as an habitual offender. The only comments made by the trial judge concerning the dangerousness of the appellant and the need to incarcerate him for an extended period for the protection of the public were as follows:
Defendant does pose a greater danger than before ... there has been an escalation in the sexually related offenses ... the defendant was released from probation supervision only about a month before these offenses occurred.... And, also, the court does have to consider the sentencing guideline scoresheet. The sentencing guideline scoresheet, in effect, says that this individual, based on the offenses that he has committed, scores up to 20 years in the Department of Corrections just from an evaluation of the offenses, so I think that the court would be very clear or that it would be very clear that Mr. Spivey does pose a threat. He had prior sexual offenses of a similar nature. These are technically in an escalating pattern. The sentencing guidelines call for a sentence of up to 22 years and I think that the court would have to find that Mr. Spivey does pose a threat.... The escalation the court was...
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Bennett v. State
...geographic proximity are all factors to be considered in determining the probative value of the evidence offered. Cf. Spivey v. State, 533 So.2d 306 (Fla. 1st DCA 1988). The opportunity to see the appellant in the same clothes, two blocks away, less than three and one-half hours after the f......
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Beal v. State, 91-2245
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