Turbi v. State

• Decision Date: 05 August 2015
• Docket Number: No. 2D14–1389.,2D14–1389.
• Citation: 171 So.3d 787
• Parties: Steven James TURBI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

171 So.3d 787

Steven James TURBI, Appellant

v.STATE of Florida, Appellee.

No. 2D14–1389.

District Court of Appeal of Florida, Second District.

Aug. 5, 2015.

Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

Opinion

KHOUZAM, Judge.

Steven Turbi timely appeals his convictions and sentences for burglary while armed and with an assault and battery; robbery with a deadly weapon; possession of cannabis; and possession of drug paraphernalia. He argues that fundamental error occurred when he was convicted of a crime with which he was not charged and the jury was given an improper instruction. We affirm.

I. BACKGROUND

The State alleged that on December 7, 2012, Turbi entered an occupied structure armed with a handgun and, during a burglary, made an assault or battery. A jury trial was held. The record shows that at 10 p.m., the victim, a food and beverage supervisor at the Stonegate Golf Club, was inside her office counting money. She heard a knock on the door, opening it to see two men there. Both men were wearing ski masks and both men had handguns that they pointed at her.

One man pulled open the door and pointed his gun in the victim's face, forcing her back into her office. Then the man walked behind her, putting the gun to the back of her head. The second man grabbed all the money from the victim's desk. He then proceeded to the safe room and took money out of the safe. This man wore a short-sleeved black shirt. Consequently, the victim recognized the man by a tattoo on his right arm. She had seen the same, unique tattoo before on a former employee—Steven Turbi.

Turbi was arrested and searched. In Turbi's left pocket, a baggy containing a green leafy substance was found. The substance tested positive for cannabis.

A jury trial was held, and the jury found Turbi guilty. He was sentenced to concurrent terms of twenty years in prison on the felonies and additionally to time served on the misdemeanors. He appeals.

II. BURGLARY CHARGE

First, Turbi argues that he was denied due process because he was charged with burglary with an assault or battery but convicted of burglary with an assault and battery. The information alleged that Turbi “did knowingly enter or remain in a structure ... while armed with a handgun, a dangerous weapon, or in the course of committing the burglary made an assault or battery.” The information referenced section 810.02, Florida Statutes (2012), which provides:

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

(a) Makes an assault or battery upon any person;

(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; ...

The verdict form listed assault and battery as separate aggravating factors for the crime of burglary, allowing the jury to find Turbi guilty of burglary with assault only, burglary with battery only, or burglary with both assault and battery. The jury checked both aggravating factors, finding him guilty of burglary with both assault and battery.

It is true that “[d]ue process of law requires the State to allege every essential element when charging a violation of law to provide the accused with sufficient notice of the allegations against him” and “[t]here is a denial of due process when there is a conviction on a charge not made in the information or indictment.” Price v. State, 995 So.2d 401, 404 (Fla.2008). Further, “[f]or an information to sufficiently charge a crime it must follow the statute, clearly charge each of the essential elements, and sufficiently advise the accused of the specific crime with which he is charged.” Id. Ultimately, “the test for granting relief based on a defect in the information is actual prejudice to the fairness of the trial.” Id.

Here, the information referenced assault as well as battery as alternative aggravators. Indeed, being armed with a deadly weapon was also listed as an alternative aggravator. So Turbi was put on notice that he was being accused of these specific aggravating factors. It is also irrelevant which aggravating factor the jury found because either finding would have supported the enhanced penalty. See Gorham v. State, 993 So.2d 128, 130 (Fla. 4th DCA 2008) (“Even if some jurors believed Gorham committed a battery, while others found he committed merely an assault, during the burglary, both of these findings support the enhanced penalty, and the verdict was unanimous as to the facts...