Taffe v. State

• Decision Date: 13 December 2017
• Docket Number: No. 4D15–4262,4D15–4262
• Parties: Richard TAFFE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

232 So.3d 431

Richard TAFFE, Appellant,

v.STATE of Florida, Appellee.

No. 4D15–4262

District Court of Appeal of Florida, Fourth District.

[December 13, 2017]

Carey Haughwout, Public Defender, and Emily Ross–Booker, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.

Damoorgian, J.

Appellant, Richard Taffe, appeals the trial court's order revoking his probation and sentencing him to fifteen years as a Habitual Felony Offender. Appellant argues that this Court should reverse because: 1) the evidence was insufficient to support the trial court's finding that Appellant violated his probation by committing the offense of witness tampering, and 2) one of the offenses for which the trial court found Appellant in violation, armed kidnapping, was not alleged in the charging affidavit. We affirm the revocation of Appellant's probation but remand for modification of the order to remove the armed kidnapping finding as discussed below.

Background

Appellant pleaded no contest to one count of felon in possession of a firearm and was sentenced to three years of probation. As a condition of his probation, Appellant was required to live without violating the law. While on probation, Appellant was arrested and charged with several offenses stemming from an armed robbery and kidnapping. Based on the foregoing, the State filed an Affidavit of Violation of Probation (VOP) which alleged that Appellant violated his probation by committing the new law offenses of: robbery with a firearm, aggravated assault with a firearm, armed false imprisonment, felony battery, burglary of a conveyance, grand theft, and witness tampering.

At the VOP hearing, the State's evidence established that Appellant and two other men set up a bogus electronics transaction with a cellular phone store owner and, during the process, kidnapped and held the victim at gunpoint. While holding the victim hostage in a car, Appellant and one of his co-defendants discussed what they should do with the victim. Appellant stated that they should kill the victim to keep him from talking to the police. The co-defendant objected and told the victim that they would let him live, but threatened that they would kill the victim and his family if he ever spoke to the police. The co-defendant then took the victim's driver's license from his wallet before shoving the victim out of the car and onto the side of a road.

Considering the foregoing evidence, the court revoked Appellant's probation, finding that he committed all of the new law violations alleged in the State's affidavit of VOP as well as the offense of armed kidnapping.

Analysis

a) The Witness Tampering Finding

On appeal, Appellant argues that the court erred in finding that he violated his probation by committing the offense of witness tampering. Section 914.22 provides, in pertinent part, that a person commits the crime of witness tampering when that person:

(1) [K]nowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:

...

(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense ....

§ 914.22(1)(e), Fla. Stat. (2013). Accordingly, to prove the offense of witness tampering, the State must prove that through some knowing act, threat, or attempted act, "the accused specifically intended to hinder, delay, or prevent the communication of information regarding a crime to a law enforcement officer." Gill v. State , 622 So.2d 92, 93 (Fla. 2d DCA 1993).

Appellant admits that the State established that he threatened to kill the victim in order to prevent him from speaking to police, but argues that this threat did not constitute tampering because there was no evidence that the victim was attempting to contact law enforcement when the threat was made. In support of his position, Appellant relies upon a line of cases from the First District which stand for the proposition that in order to support a conviction for witness tampering under section 914.22(1)(e), the State is required "to present evidence that the victim was attempting to contact law enforcement during the time of the incident." McCray v. State , 171 So.3d 831, 832 (Fla. 1st DCA 2015) (citing Thompson v. State , 153 So.3d 996 (Fla. 1st DCA 2015) and Longwell v. State , 123 So.3d 1197 (Fla. 1st DCA 2013) ). We reject this authority and instead adopt the Second District's holding in McCloud v. State , 224 So.3d 842, 846 (Fla. 2d DCA 2017).

Certifying conflict with McCray , the Second District held that " section 914.22(1)(e) does not require the State to present evidence showing that the witness or victim ‘was attempting to contact law enforcement during the time of the incident.’ " McCloud , 224 So.3d at 846 (quoting McCray , 171 So.3d at 832 ). In arriving at this conclusion, the McCloud court looked to the plain language of section 914.22(1)(e), which notably does not include any language providing that the witness must be attempting to contact law enforcement when the tampering occurs. Id. It therefore reasoned that the First District improperly "add[ed] another element to a crime that is otherwise clearly defined." Id. Additionally, the McCloud court reasoned that "if we were to interpret the statute as the First District has done, the State's case would be dependent upon the actions of the witness rather than on those of the defendant. Such an interpretation not only severely restricts the statute's applicability, but it also contravenes the plain meaning of the statute and could lead to absurd results." Id. (footnote omitted).

In our view, there is simply nothing within the plain language of the witness tampering statute requiring the State to prove the witness was attempting to contact law enforcement when the threat was made. Instead, the statute only requires the "State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement ‘relating to [not during] the commission or possible commission of...