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Salter v. State

Florida Court of Appeal, Fourth District

December 7, 2011

Harry SALTER, Appellant,
v.
STATE of Florida, Appellee.

Rehearing Denied Jan. 24, 2012.

Page 761

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant, Harry Salter, appeals the judgment and ten-year sentence imposed on him by the trial court. Salter was charged by information with: I) robbery with a firearm; II) carrying a concealed firearm; III) fleeing or attempting to elude marked police car; and IV) possession of marijuana less than twenty grams. After being convicted, Salter contended the trial court denied his request to be sentenced as a youthful offender because he chose to go to trial instead of pleading guilty. While the court has discretion to sentence someone as a youthful offender, it is improper to decline one's request because he or she exercised a constitutional right to trial. We therefore affirm Salter's conviction, but remand the matter for resentencing before a different judge for consideration of the facts to determine if a youthful offender sentence is proper, rather than basing the decision on Salter's plea.

On March 19, 2009 at approximately 3:30 a.m., two males, dressed in black clothes and black masks, entered the Cumberland Farms gas station in Palm Beach County. They displayed a gun and pointed it at an employee. The employee was told to lie down and was asked for the key to open the safe. Once the males had access to the safe, they took rolls of change and bills, ran toward the door to leave, and turned around and shot once before leaving, striking the counter.

On the night of the incident, the on-duty road patrol deputy noticed a black Crown Victoria driving northbound on State Road Seven, just north of Southern Boulevard. From his position in a parking lot on the corner of Southern and State Road Seven, the deputy noticed that the Crown Victoria had a broken left taillight, displaying a white portion of the light, which is an " equipment violation." The deputy initiated

Page 762

a stop by activating his red and blue lights atop his vehicle. The vehicle did not pull over, but entered a Wal-Mart parking lot and continued to move slowly. Ultimately, the deputy and back-up patrol units were able to stop the vehicle. The driver, Samuels, was ordered to exit the vehicle and lie down next to it. The deputy opened the back door of the vehicle and noticed Salter in a crouched down position. Salter was removed from the vehicle and a search was conducted. The officers found a firearm and money in the vehicle. Officers also found a baseball cap, beige pants, two black t-shirts, and Salter's wallet in the vehicle, and a pair of jeans, a ski mask, and Samuel's wallet in the trunk.

Salter was taken to the police station for questioning, at which time he told officers " he was just picked up from his" girlfriend's house and getting a ride home to Belle Glade. Salter alleged that he noticed the firearm in the vehicle and asked the driver about it, to which he responded that it belonged to " Willy," a passenger in the vehicle who evaded officers during the traffic stop. Salter was also asked if he knew how the money got into the vehicle and he replied he did not know. However, in a second statement given to officers, Salter identified Willy Kitchen as a participant in the robbery of the Cumberland Farms gas station store. Salter also provided contradictory statements regarding his presence at the robbery. In his first statement, Salter told officers that he was picked up after the robbery and was not involved in the crime. Later, he explained that he went inside the store to purchase a bottle of water and a cigar and that as he was exiting the store, Samuels and Kitchen were entering. He also provided that he drove the vehicle after the robbery.

Salter moved to suppress evidence seized during the traffic stop, providing it was the product of an unlawful seizure of his person. The trial court denied the motion to suppress, finding that " the stop of the vehicle and detention and arrest of the driver was obviously entirely lawful and appropriate." Salter also filed a motion for judgment of acquittal, which the trial court denied as to count I, but granted as to count II. In addition, Salter filed proposed special jury instructions regarding the definition of " circumstantial evidence," but the court refused to grant Salter's request and did not instruct the jury in accordance with Salter's proposal. The jury found Salter guilty of robbery with a firearm, as charged in the information. Salter filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. This appeal followed.

Salter's Conviction

" The standard of review on a motion for judgment of acquittal is de novo. " Wiley v. State, 60 So.3d 588, 590 (Fla. 4th DCA 2011). An appellate court, generally, " will not reverse a conviction that is supported by competent substantial evidence." Id. If the State is unable to show evidence so that a " jury can exclude every reasonable hypothesis except that of guilt," the motion for judgment of acquittal should be granted. Id. at 591. The State has the burden of showing evidence which refutes the defendant's version of the events, and once the State shows such evidence, it is the jury's role to determine the sufficiency of the evidence as to the exclusion of " every reasonable hypothesis of innocence beyond a reasonable doubt." Id.

Salter argued that the evidence in this case was insufficient to prove that he was guilty of robbery and that the State failed to prove he intended to participate in the robbery. The State contended that Salter confessed to being present at the store where ...


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