CASSELMAN v. STATE

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Docket Number

No. 5D98-2792.

Attorney(S)

James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Bonnie Jean Parrish, Daytona Beach, for Appellee.

Judges

SHARP, W., J.

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Smart Summary

Factual and Procedural Background

Kirby Lee Casselman was convicted by a jury of battery on a law enforcement officer, resisting an officer with violence, assault on a law enforcement officer, and tampering with evidence. The convictions arose from two distinct episodes involving Deputy Stevin: the first when Casselman was initially stopped for riding a bicycle at night without proper lighting and carrying a passenger on the handlebars, during which Casselman punched the deputy; and the second when Casselman fled and resisted arrest behind a house, engaging in a physical struggle with the deputy. Casselman appealed his convictions and the upward departure sentence imposed by the trial court. The trial court had imposed a ten-year sentence based on an upward departure rationale that Casselman committed battery to avoid detection of a criminal offense (possession of cocaine), although the evidence did not establish the substance as cocaine.

Legal Issues Presented

Whether Casselman's double jeopardy rights were violated by multiple convictions arising from a continuous episode of resistance to law enforcement.
Whether the elements of assault and battery on a law enforcement officer are subsumed by the offense of resisting an officer with violence, thus implicating double jeopardy concerns.
Whether the trial court properly imposed an upward departure sentence based on the rationale that the battery was committed to avoid detection of another criminal offense.

Arguments of the Parties

Appellant's Arguments

Casselman argued that his double jeopardy rights were violated because all charges arose from a continuous resistance to police officers during his arrest.
He contended that the elements of assault and battery on a law enforcement officer are contained within the statute for resisting an officer with violence, and thus multiple convictions for these offenses violate double jeopardy.
He argued that tampering with evidence is subsumed by resisting an officer because the conduct was part of a single continuous episode of resistance.
Casselman challenged the upward departure sentence, asserting that the reasons given by the trial court were inherent in the charged offenses and therefore invalid.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wallace v. State, 724 So.2d 1176 (Fla. 1998)	Double jeopardy principles relating to multiple convictions arising from a single episode of resistance.	Referenced in appellant's argument regarding double jeopardy claims.
Sirmons v. State, 643 So.2d 153 (Fla. 1994)	Double jeopardy and the subsuming of offenses within a single criminal episode.	Used to support appellant’s claim that tampering with evidence is subsumed by resisting an officer charge.
United States v. Dixon, 509 U.S. 688 (1993)	Double jeopardy doctrine regarding multiple charges arising from a single criminal episode.	Cited to illustrate the complexity and lack of clarity in double jeopardy case law.
Illinois v. Vitale, 447 U.S. 410 (1980)	Double jeopardy principles.	Referenced in discussion of double jeopardy analysis.
Ziegler v. State, 714 So.2d 1197 (Fla. 4th DCA 1998)	Double jeopardy considerations in Florida.	Used to illustrate Florida case law on double jeopardy.
Khan v. State, 704 So.2d 1129 (Fla. 4th DCA 1998)	Double jeopardy in Florida.	Referenced in the court's analysis of double jeopardy issues.
Capers v. State, 678 So.2d 330 (Fla. 1996)	Permissibility of upward departure sentence based on an element of the offense.	Used to support the principle that sentencing guidelines allow enhancement based on offense elements, but also referenced regarding improper application here.
Davis v. State, 700 So.2d 130 (Fla. 4th DCA 1997)	Sentencing departure rationale.	Cited by the trial court in its written reason for upward departure.
Smith v. State, 620 So.2d 187 (Fla. 1993)	Departure reasons inherent in offenses are invalid.	Referenced by appellant to argue against the validity of the departure sentence.
Gordon v. State, 599 So.2d 1048 (Fla. 5th DCA 1992)	Departure reasons inherent in offenses are invalid.	Used by appellant to challenge the sentencing departure.
State v. Stewart, 2000 WL 24903 (Fla. 2d DCA 2000)	Insufficient evidence to support sentencing departure requires reversal.	Applied to reverse the upward departure sentence due to lack of evidentiary support.
Fleshman v. State, 736 So.2d 1219 (Fla. 5th DCA 1999)	Reversal of sentencing departure for lack of evidence.	Supported reversal of the upward departure sentence.
Johnson v. State, 689 So.2d 1111 (Fla. 2d DCA 1997)	Sentencing departure reversal due to insufficient evidence.	Used as precedent for reversal of unsupported sentencing departure.
Hicks v. State, 583 So.2d 1106 (Fla. 2d DCA 1991)	Fundamental error review of sentencing errors without objection.	Supported appellate review despite lack of objection to sentencing departure.
Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1994)	Fundamental error in sentencing review.	Referenced for fundamental error doctrine in sentencing.
Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983)	Fundamental error in sentencing review.	Referenced for fundamental error doctrine in sentencing.
Maddox v. State, 2000 WL 565093 (Fla. May 11, 2000)	Sentencing errors constituting fundamental error may be reviewed without objection.	Applied to allow appellate review of sentencing departure error despite no objection.
Hernandez v. State, 569 So.2d 938 (Fla. 3d DCA 1990)	Standard for reviewing evidence in upholding convictions.	Referenced in the court’s review of evidence supporting convictions.
Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979)	Standard for reviewing evidence in upholding convictions.	Referenced in the court’s review of evidence supporting convictions.

Court's Reasoning and Analysis

The court analyzed the double jeopardy claims by distinguishing the two separate episodes of conduct: the initial assault and battery committed when Casselman was stopped and punched Deputy Stevin, and the subsequent resisting charge arising from Casselman's flight and physical resistance during attempted arrest. Because these were two distinct episodes, the court found no double jeopardy violation in convicting Casselman of assault, battery, and resisting an officer with violence.

The court also explained that while the offenses of assault and battery are traditionally distinct and tampering with evidence has different elements, the resisting offense may overlap with assault and battery when based on the same acts. However, here the facts supported separate charges due to the sequential nature of the conduct.

Regarding the upward departure sentence, the court acknowledged that sentencing guidelines permit enhancement based on an element of the offense, citing Capers v. State. Nonetheless, the court found the departure sentence unsupported because the state failed to prove the presence of crack cocaine or any criminal felony that Casselman sought to avoid by committing battery. The deputy's suspicion without evidence was insufficient. Consequently, the court held that the departure was improper and reversed the sentence. The court further noted that such sentencing errors constitute fundamental error and may be reviewed on appeal even without objection at trial.

Holding and Implications

The court AFFIRMED Casselman's convictions for battery on a law enforcement officer, resisting an officer with violence, assault on a law enforcement officer, and tampering with evidence.

The court REVERSED the upward departure sentence imposed by the trial court due to lack of evidentiary support and REMANDED for resentencing consistent with the sentencing guidelines.

The decision directly affects the parties by upholding the convictions but correcting the sentencing error. The opinion does not establish new precedent beyond clarifying the application of double jeopardy principles to sequential episodes and the evidentiary requirements for upward departure sentencing.

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KIRBY LEE CASSELMAN, Appellant, v. STATE OF FLORIDA, Appellee.

SHARP, W., J.

Casselman appeals from his judgment and sentence after being convicted by a jury of battery on a law enforcement officer, resisting an officer with violence, assault on a law enforcement officer, and tampering with evidence. We affirm the convictions, but we reverse the upward departure sentence imposed by the trial court.

§§ 784.03, 784.07(2)(b), Fla. Stat. (1997).

§ 843.01, Fla. Stat. (1997).

§§ 784.011, 784.07(2), Fla. Stat. (1997).

§ 918.13(1)(a), Fla. Stat. (1997).

Casselman argues that his double jeopardy rights were violated because they grew out of his continuous resistance to police officers' attempts to arrest him, and his eventual arrest. Wallace v. State, 724 So.2d 1176 (Fla. 1998). Casselman also argues that all the elements of assault on a law enforcement officer and battery on a law enforcement officer are contained in the statute which addresses resisting an officer with violence. See §§ 784.07(a)(2)(a); 784.011; 784.03; 784.07(2)(b) and 843.01, Fla. Stat. He further argues that all of the elements of tampering with physical evidence are subsumed by the elements of the resisting offense, because the conduct proved in this case was sequential steps in a single episode of continuous resistence. Wallace; Sirmons v. State, 643 So.2d 153 (Fla. 1994); § 775.021(4)(b)(3), Fla. Stat. (Supp. 1998).

The evidence at trial taken most favorably to upholding the convictions, was that Deputy Stevin stopped Casselman because he was riding a bicycle at night without a headlight or rear light, and was carrying a passenger on the handle bars. When Casselman put his hand in his pocket, Stevin told him to remove it. Casselman did pull his hand from his pocket and Stevin saw what he thought looked like several rocks of cocaine. Casselman tossed them to his passenger, who jumped off the handlebars. Some of the substance fell to the ground.

Hernandez v. State, 569 So.2d 938 (Fla. 3d DCA 1990); Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979).

Stevin approached Casselman, and Casselman punched him in the chest. Casselman then tried to punch the deputy in his face. Stevin moved away and used his pepper spray. He thought Casselman was subdued, and he began to approach the passenger, but the passenger ran away. When Stevin turned back to Casselman, he saw he also had run away, heading down the street. Stevin admitted he could not say whether the substance he thought was crack cocaine was in fact cocaine. It was never recovered nor was the bicycle passenger found.

Stevin pursued Casselman in his police vehicle. Tipped off by a neighbor, Stevin found Casselman behind a house, attempting to crawl under a camper-trailer. Stevin claimed Casselman ignored his commands to put out his hands so he could handcuff him. He wrestled with Casselman, and Casselman cursed, yelled, resisted, kicked, spit and attempted to bite Stevin in the leg. Backup officers arrived and eventually subdued Casselman by cuffing him, hobbling him and pulling his shirt over his head.

The double jeopardy case law in this state is far from clear. It appears that multiple counts of the same offenses, in a single episode, may not be charged, and different offenses charged as a result of a single episode may, in some cases, also violate double jeopardy. See United States v. Dixon, 509 U.S. 688 (1993) ; Illinois v. Vitale, 447 U.S. 410 (1980) ; Ziegler v. State, 714 So.2d 1197 (Fla. 4th DCA 1998); Khan v. State, 704 So.2d 1129 (Fla. 4th DCA 1998). The offenses of assault and battery are traditionally considered separate and different offenses because they proscribe different acts. And the tampering offense clearly sets forth very different elements than the other offenses.

Section 784.03 provides:

(1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other . . . .

The offense of assault on a law enforcement officer is set forth in section 784.011. The punishment for this offense is also enhanced by section 784.07(2). Section 784.011 provides:

(1) An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Tampering with evidence is prohibited by section 918.13(1)(a), as follows:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:

(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation; . . . .

However, the resisting offense may punish the same conduct as the assault and battery offenses. As defined by the statute it requires a willful or knowing resistence, obstruction, or opposition of a law enforcement officer executing his legal duty by "offering or doing violence to the person of the officer." In a case where there is only one assault or one battery and the same underlying acts are involved in the resisting charge, double jeopardy may bar duplicate convictions.

Section 843.01 prescribes the offense of resisting an officer with violence, and provides:

Whoever knowingly and willfully resists, obstructs, or opposes any officer . . . in the lawful execution of any legal duty, by offering or doing violence to the person of such officer . . . .

In this case there were, in fact, two episodes. The first occurred when Casselman was initially stopped by Stevin. He struck Stevin and then attempted to hit him in the face. This episode is sufficient basis for the assault and battery charges. The second set of acts which comprised the resisting charge occurred after Stevin had run away from the deputy and the deputy was trying to arrest him. Thus we find no double jeopardy problem with these convictions.

With regard to the departure sentence, the trial court departed upwards in imposing a sentence of ten years; five on the battery count and the resisting account, to be followed by five years on the tampering account. The trial court gave as its reason for departing that Casselman committed the offense of battery for the purpose of avoiding detection and the responsibility for another offense — possession of cocaine. Its written reason was "pursuant to 921.0016(3); Capers v. State, 678 So.2d 330 (Fla. 1996) ; Davis v. State, 700 So.2d 130 (Fla. 4th DCA 1997) offense committed to prevention of detection of his criminal conduct by law enforcement and to escape from being stopped and detained by them."

Casselman argues that the departure reasons are invalid because they are inherent in all of the offences charged. Smith v. State, 620 So.2d 187 (Fla. 193); Gordon v. State, 599 So.2d 1048 (Fla. 5th DCA 1992). However, the sentencing guidelines which became effective on January 1, 1994 changed the law and allow a court to enhance based on an element of the offense. Capers v. State, 678 So.2d 330 (Fla. 1996).

The problem in this case is that at trial there was no evidence of the criminal felony offense, to prevent the detection of which Casselman committed the other offenses. The state was able to adduce no proof that the objects thrown to the bicycle passenger or on the ground were in fact crack cocaine. Even the deputy said he could not testify what the substance was; he merely suspected it was crack cocaine. Because there was insufficient or no evidence to support the departure sentence, it must be reversed. See State v. Stewart, 2000 WL 24903 (Fla. 2d DCA 2000); Fleshman v. State, 736 So.2d 1219 (Fla. 5th DCA 1999); Johnson v. State, 689 So.2d 1111 (Fla. 2d DCA 1997). Where there is no evidence to support the sentencing departure reasons, the failure to object does not preclude the issue on appeal, because it is fundamental error. Hicks v. State, 583 So.2d 1106 (Fla. 2d DCA 1991). See also Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1994); Reynolds v. State, 429 So.2d 1331, 1333 (Fla. 5th DCA 1983).

Sentencing errors which constitute fundamental error may be reviewed without objection. Maddox v. State, 2000 WL 565093 (Fla. May 11, 2000).

AFFIRMED in part; REVERSED in part; REMANDED for Resentencing.

DAUKSCH and PLEUS, JJ., concur.