State v. Anton

• Decision Date: 01 October 1997
• Docket Number: No. 96-03927,96-03927
• Citation: 700 So.2d 743
• Court: Florida District Court of Appeals
• Parties: 22 Fla. L. Weekly D2327 STATE of Florida, Appellant, v. Robert ANTON, Appellee. Robert ANTON, Appellant, v. STATE of Florida, Appellee.

Page 743

700 So.2d 743

22 Fla. L. Weekly D2327

STATE of Florida, Appellant, v. Robert ANTON, Appellee.

Robert ANTON, Appellant, v. STATE of Florida, Appellee.

No. 96-03927.

District Court of Appeal of Florida Second District.

Oct. 1, 1997.

Rehearing Denied Oct. 28, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for the State of Florida.

M.D. Purcell, Tampa, for Robert Anton.

PER CURIAM.

In these consolidated cases, the State of Florida appeals from an order granting Robert Anton a new trial for aggravated assault and attempted robbery with a firearm, and Anton challenges the judgment and sentences which were entered before the trial court decided to grant a new trial. For the reasons discussed below, we reverse the order granting a new trial, affirm the convictions and sentences, and direct the trial court to correct the judgment to reflect that attempted robbery with a firearm is a second-degree felony.

On December 27, 1995, the State charged Anton with aggravated assault and attempted robbery with a firearm arising out of an incident that occurred on December 9, 1995. At trial, Lloyd Campbell testified that, at the time of the offenses, he was a security officer at The Preserve at Lake Thomas (the Preserve), a housing development under construction. Robert Pinson, the son of an investor in the Preserve, alerted Campbell to the presence of a white pick-up truck on the property. Campbell retrieved a pistol and the two men drove to the site of the truck. Campbell testified that when they approached the white pick-up truck, Anton was carrying lumber in his hands. At that point, Anton dropped the wood and Campbell asked him what he was doing. Anton responded, "You can help me load some wood." Campbell then asked Anton who he worked for, to which Anton responded in a hostile manner, "Go away, little boy, before you get yourself hurt." Campbell testified that at this point Anton reached under the seat of his vehicle and secured a firearm. Anton then accelerated his vehicle and headed toward Pinson. Campbell stated that Pinson "literally had to jump to keep from getting hit with the vehicle." Campbell indicated that Anton could have chosen to leave the Preserve by other escape routes.

Pinson testified that he saw Anton carrying lumber at the rear of the white pick-up truck. He stated, "When [Anton] saw us, he dropped [the wood]." Pinson was unaware of the severity of the situation until he saw Campbell draw his pistol. Although Pinson did notice Anton leaning forward to the floor of his truck, Pinson never saw Anton's firearm. Pinson exited his vehicle and, at that point, Anton drove in Pinson's direction with the pick-up truck. Pinson stated that it appeared Anton was aiming the truck at him and that he was going to get hit with the truck. He said the back of Anton's truck was fishtailing so close to him that he could touch it and indicated that the truck came within three feet of hitting him. Although he "scrambled around to get out of the way," Pinson was able to see the license tag number. He also stated that there were other avenues for Anton to escape. Both Pinson and Campbell testified that they were in fear for their lives during the incident.

Deputy William Moe testified that Campbell described the situation to him as a "standoff." The deputy testified that driving at the victim is a tactic used to put someone in fear so they will fail to pay attention to the license tag number. After the incident, however, Deputy Moe obtained the tag number from Pinson, arrested Anton, and advised him of his right to remain silent. When asked by the State whether Anton agreed to speak with the deputy, Deputy Moe testified, "Not really. At that point [Anton] did not want to." Anton did agree to talk to the deputy afterward. Anton's comments to the deputy suggested he intended to take the lumber, but had a change of heart. Deputy Moe testified that Anton said, "I'm not going to tell you that," when asked about whether he had a firearm in the truck.

Anton elected to testify in his defense. His version of events was that he saw a "Welcome" balloon and a sign near the Preserve that read "Walk our Nature Walk" and decided to take a look at the area to see if it would be a nice place for his girlfriend and children to visit during the holidays. However, his truck became stuck in the mud and he obtained some wooden boards that were on the property to use as leverage to remove his vehicle. At that point, Campbell approached him and said, "It looks like you're trying to steal lumber," to which Anton replied jokingly, "Only if you're going to help me load it." Anton testified that Campbell became "verbally aggressive" and pulled a pistol, after which Anton fled in fear. According to Anton, there was no other way to leave the Preserve without getting stuck in the mud. Anton stated that the first time he saw Pinson was in his rearview mirror.

Defense counsel asked Anton, "Did you ever tell Officer Moe that you weren't going to talk to him or you weren't going to tell him something?" Anton replied, "Never. I talked to him just like I would talk to anybody." Anton also stated that when the deputy asked if he had a firearm, he never said "I'm not going to tell you," but instead, he said, "I didn't have anything." The State then called Deputy Moe in rebuttal. The State asked the deputy if Anton told him that he saw a sign or balloon stating "Welcome, Nature Walk." The deputy testified "Never heard that." Deputy Moe further indicated that Anton did not tell him he got stuck in the mud, Anton never said he procured the wood to remove his vehicle, and Anton did not inform the deputy that he was in fear because Campbell brandished a pistol. The deputy said, "The only thing [Anton] told me was that his attorney would not want him to say anything."

During deliberation, the jury asked the trial court to read back Campbell's testimony concerning Anton's possession of the firearm during the incident. Defense counsel objected to the trial court reading back this testimony, arguing that the trial court should reread either all testimony concerning the firearm or no testimony concerning the firearm. After reviewing Campbell's testimony, the trial court stated that there was no other applicable part of the cross-examination or redirect concerning the firearm. Defense counsel agreed but renewed his objection to reading back this testimony as placing undue weight on a narrow portion of the evidence. The trial court overruled the objection and read back the requested portion of Campbell's testimony.

On May 7, 1996, the jury returned a verdict of guilty as charged. On July 8, 1996, the trial court sentenced Anton as a habitual offender to ten years in prison for aggravated assault and thirty years in prison for attempted robbery with a firearm, including a three-year minimum mandatory term for use of a firearm. On July 9, 1996, Anton filed his notice of appeal of the judgment and sentences. Notwithstanding the pending appeal, on July 17, 1996, Anton, through substitute counsel, filed a motion for new trial. On August 28, 1996, the trial court granted the motion for new trial. After the trial court denied the State's timely motion for rehearing, on September 4, 1996, the State filed its notice of appeal of the order granting the motion for new trial.

We first address the State's appeal from the trial court's order granting a new trial. The State argues that the trial court acted outside its jurisdiction in granting the motion for new trial. Anton was required to file his motion for new trial within ten days after rendition of the verdict. See Fla. R.Crim. P. 3.590(a); Costello v. State, 246 So.2d 752 (Fla.1971), overruled in part on other grounds, State v. District Court of Appeal, First District, 569 So.2d 439 (Fla.1990); Richardson v. State, 540 So.2d 133 (Fla. 5th DCA 1989). Failure to file such a motion within the allotted time deprives the trial court of jurisdiction to rule on the motion. See Clifton v. State, 697 So.2d 1000 (Fla. 2d DCA 1997); Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981). Anton filed his motion for new trial more than two months after the jury rendered its verdict. By granting a new trial, the trial court exceeded its jurisdiction. As a result, we reverse the trial court's order granting Anton a new trial.

With the resolution of the State's appeal, the only case remaining for review is the direct appeal of the judgment and sentences. Anton advances multiple grounds for reversal. First, he contends that the trial court erred in permitting Deputy Moe to comment on his right to remain silent. Even though the statements are fairly susceptible of being interpreted as comments on Anton's right to remain silent, defense counsel made no objections to any of the comments of the deputy, failing to preserve any potential errors. See Clark v. State, 363 So.2d 331 (Fla.1978), overruled in part on other grounds, State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Wyatt v. State, 578 So.2d 811 (Fla. 3d DCA 1991). Therefore, Anton must establish fundamental error before we can review these comments. See Castor v. State, 365 So.2d 701, 703 (Fla.1978) ("Except in the rare cases of fundamental error ... appellate counsel must be bound by the acts of trial counsel."). At trial, the defense strategy was apparently to contradict Deputy Moe's testimony. As such, Anton testified that he talked to the deputy "just like [he] would talk to anybody," and that he told Deputy Moe that he did not have a firearm during the incident. Under the circumstances, we conclude that the comments of the deputy did not rise to the level of fundamental error. See State v. Rhoden, 448 So.2d 1013, 1016 (Fla.1984) ("The [contemporaneous objection] rule prohibits trial counsel from deliberately allowing known errors to go uncorrected as a defense tactic and as a hedge to provide a...