State v. Brice

• Decision Date: 03 June 2016
• Docket Number: No. 2D14–1121.,2D14–1121.
• Parties: STATE of Florida, Appellant, v. Frank J. BRICE, Jr., Appellee.
• Court: Florida District Court of Appeals

192 So.3d 692

STATE of Florida, Appellant,
v.
Frank J. BRICE, Jr., Appellee.

No. 2D14–1121.

District Court of Appeal of Florida, Second District.

June 3, 2016.

Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellant.

Terra Carroll of Law Offices of Terra Carroll, Lakewood Ranch, for Appellee.

SALARIO, Judge.

The State appeals an order dismissing a single count of an information that charged Frank Brice with possession of a firearm by a person previously found to be delinquent. The trial court held that collateral estoppel barred the State from prosecuting that count because Mr. Brice had been acquitted of related charges for possession of a firearm on school property, carrying a concealed firearm, and trespassing on school property with a firearm, all of which arose out of the same events and were charged in the same information but had been severed for trial from the count for possession of a firearm by a person previously found to be delinquent.¹ We reverse.

I.

Late on the night of July 6, 2013, police discovered Mr. Brice naked with his girlfriend in the backseat of her mother's car. They were parked in an open lot adjacent to a technical high school located in a local community center. As the police approached the car, Mr. Brice jumped from the back seat to the front seat. The officers saw Mr. Brice reach under the front seat and heard the sound of metal clinking. Mr. Brice emerged from the car, evidently wearing underwear but not pants, and explained to the officers that he was putting an umbrella under the seat. Mr. Brice fled, and the police found a gun under the front seat of the car. He was subsequently arrested.

192 So.3d 694

The State charged Mr. Brice with one count each of possession of a firearm by a person previously found to be delinquent, possession of a firearm on school property, carrying a concealed firearm, trespass on school property with a firearm, and resisting arrest. The trial court severed the count for possession by a person previously found to be delinquent from the remaining four counts and then tried those four counts to a jury first.

At the first part of his severed trial, Mr. Brice disputed that he possessed or carried a firearm and, as a result, that he could be convicted on the three firearm-related counts. The State presented evidence that Mr. Brice admitted to police both that he knew about the handgun and that he pushed the gun under the seat as police approached. Mr. Brice denied that the gun was his and that he placed it in the car and stated that other men had been in the car earlier and had placed the gun there. His girlfriend, whose fingerprints were found on the gun, testified that he removed the gun from his pocket when he removed his pants and that he put the gun back in the pants at her request. Mr. Brice denied keeping the gun in his pants, and the evidence was uncertain as to whether Mr. Brice was wearing pants at any time that mattered. There was no dispute that the gun was somewhere in the car during the relevant events.

The jury returned a general verdict of not guilty on the three firearm counts and guilty on the resisting arrest count. Each of the three firearm counts required the State to prove beyond a reasonable doubt that Mr. Brice possessed or carried a firearm, as applicable, and some additional element: the possession of a firearm on school property count required that the possession be on school property, § 790.01(2), Fla. Stat. (2013) ; the trespass on school property with a firearm count required a trespass on school property, § 790.115(2)(a) ; and the carrying of a concealed weapon count required a concealment on or about his person of the weapon carried, § 810.095(1), Fla. Stat. (2013). In addition to disputing that he possessed a firearm, Mr. Brice also disputed (1) whether he was on school property, (2) whether he committed a trespass, and (3) whether the firearm was concealed while carried on his person. Because the jury returned a general verdict—and the record contains no other indication of what its thinking was—we cannot tell whether its verdict on the three firearms counts rested on the elements of possession and carrying or the other elements of those offenses.

Following the verdicts, Mr. Brice moved to dismiss the remaining count for possession of a firearm by a person previously found to be delinquent pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). Mr. Brice argued that the jury necessarily resolved the question whether he possessed or carried a firearm adversely to the State and, as a result, that any further prosecution of an offense requiring proof of possession was barred by collateral estoppel. Other than reciting that the jury returned not guilty verdicts on the other counts that contained possession of a firearm as an element, the motion offered very little in the way of supporting facts. After a hearing, the trial court entered an order granting the motion to dismiss, stating without further explanation that “[b]ased on the facts presented at trial ... the only reasonable interpretation of the jury's verdict is that the Defendant's possession of the firearm was not proved.” The...