Carey Haughwout, Public Defender, and Nan Ellen Foley and Ty P. Eppsteiner, Assistant Public Defenders, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
Adalberto Ramos appeals his convictions for four counts of sexual battery upon a child less than twelve years of age, one count of indecent assault, and one count of lewd or lascivious molestation. Ramos raises three points on appeal: 1) the trial court abused its discretion in denying his motion for continuance; 2) the trial court erred in summarily denying his motion for disqualification; and 3) the trial court erred in denying his motion for judgment of acquittal on the indecent assault charge.
We find that the trial court acted within its discretion in denying Ramos's motion for a continuance and that the motion for disqualification was legally insufficient. We agree, however, that the trial court erred in denying Ramos's motion for judgment of acquittal on the indecent assault count because the evidence at trial was insufficient to prove the commission of the
crime during the period alleged in the information. Accordingly, we reverse the conviction and sentence for indecent assault. We affirm the remaining convictions and sentences.
Ramos was charged by information with four counts of sexual battery upon a child less than twelve years of age (counts I-IV), one count of indecent assault (count V), and one count of lewd or lascivious molestation (count VI). Ramos was charged with having sexually abused the victim on multiple occasions between September 1, 1999, when the victim was eight years old, and May 13, 2003, just before the victim's twelfth birthday.
Prior to trial, Ramos changed his attorney at least four times. The defense counsel who represented Ramos at trial, was hired sometime between July 10, 2009 and August 20, 2009. On August 31, 2009, defense counsel filed an amended motion to have Ramos declared indigent for costs. The trial court granted this motion on September 2, 2009.
On Thursday morning, October 15, 2009, the trial court held a calendar call to determine if the parties were ready for trial that was scheduled for the following Monday. The trial judge noted that this was the fifth time that the case had been set for trial and asked defense counsel if he was ready. Defense counsel responded that he was not ready as there were " paperwork" problems with the Justice Administrative Commission (" JAC" ) surrounding the costs for deposition transcripts taken by previous counsel. The state had no objection to a continuance.
The trial court noted that Ramos had been in custody for a year and a half, and that Ramos " needs his day in court." The trial court stated that it was going to leave the trial on for the following Monday and suggested that defense counsel call the JAC and use the fact that the trial was set as leverage. The trial court offered to call the JAC right there during the hearing, but defense counsel asked to handle it himself from his office.
On the following Monday afternoon, just prior to jury selection, defense counsel told the trial court that he had obtained two of the deposition transcripts, but that he had been unable to get two others, including the deposition transcript of the victim. Defense counsel also explained that he had been unable to depose two of the state's potential witnesses because of the " indigency problem."
Jury selection continued until 8 p.m. that evening. At the conclusion, defense counsel noted that because of the late hour, he had been unable to pick up the additional deposition transcripts and was scheduled to be in front of another judge the following morning. The trial judge asked defense counsel if he could make an opening statement without considering the deposition transcripts, and defense counsel replied, " Yes, I wouldn't need them."
The following morning, before opening statements, Ramos filed a written and verified motion to disqualify the trial judge. The motion alleged that the court's failure to grant a continuance " along with [the court's] demeanor with undersigned counsel ha[d] caused the Defendant to reasonably fear that he [would] not get a fair and impartial trial." The trial court found that the motion was legally insufficient and summarily denied it.
By the time the trial court ruled on the motion for disqualification, it was already 1:30 p.m. At that point, the trial court asked defense counsel if he had been able to obtain the remaining deposition transcripts. Defense counsel replied that neither he nor ...