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Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
This case presents a very rare incidence where ineffective assistance of counsel is apparent on the face of the record. Trial counsel failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes. Although the trial court tried to salvage a bad situation, the damage was irreparable, as counsel continued to perform ineffectively. We are compelled to reverse.
The state filed an information against appellant in St. Lucie County, Florida, alleging four counts: count I for sexual battery by digital penetration of A.W.G., a child under 12 by a perpetrator 18 or older, for incidents that occurred between November 19, 1997, and November 18, 1998; count II for sexual battery by oral penetration of or union with A.W.G., a child under 12 by a perpetrator 18 or older, during the same time period; count III for lewd or lascivious molestation of D.A.R., a victim 12 to 16, for incidents that occurred between December 1, 2003, and December 31, 2003; and, count IV for lewd or lascivious molestation of D.A.R., a victim 12 to 16, for incidents that occurred between August 29, 2005, and May 4, 2007.
At jury selection on February 8, 2010, the trial judge read all four counts to potential jurors. The jury was chosen and sworn, and the court asked if the attorneys had any motions, to which defense counsel Stephen Fromang responded, " No, I'm going to go back and ... take a good hard look at it now." The next morning, Mr. Fromang filed a Motion to Sever Counts III and IV, stating that he thought the state had nolle prossed them, and because of this, he was not ready to proceed on those counts and had not conducted discovery.
The court expressed its irritation with Mr. Fromang and admonished him for filing the motion so late. Fromang responded, " I didn't— I just was telling you, Judge, it didn't coalesce, but when it did, I— I— I presented it to the Court." Fromang stated that he had based his assumption that the state had nolle prossed the counts on the fact that D.A.R. had recanted her story in a letter and said she didn't want to be involved in the trial. The state maintained, however, that D.A.R. had never recanted and that Mr. Fromang was " aware that she's always been involved in the picture." Mr. Fromang admitted that he never took her deposition, nor had he ever received a nolle prosse from the state.
The prosecutor suggested that Mr. Fromang ask for a mistrial on those two counts and waive jeopardy so that the court could sever counts III and IV. Mr. Fromang immediately agreed. The court then asked the prosecutor how she wished to proceed, and she responded that she believed that counts I and II were interrelated
to counts III and IV. The court then suggested that the Williams  Rule might provide a basis for allowing the charges in counts III and IV to be inserted in counts I and II. The prosecutor had not pursued admission of the testimony of victim D.A.R. through the Williams Rule, because the counts were never severed. The court discussed with the prosecutor the similarities between the crimes to determine whether this would cure the prejudice to the state if severance were granted.
The judge then began to ask Mr. Fromang if he was making a motion to sever, but then stated that the court " can't have anything to do with your decision." Mr. Fromang requested a mistrial, but the court prompted Mr. Fromang on waiving double jeopardy on counts III and IV, and Mr. Fromang immediately moved for the waiver. The court then asked Mr. Fromang if he would waive the ten-day notice requirement for Williams Rule evidence, and Mr. Fromang readily agreed to do so. See § 90.404(2)(d)1., Florida Statutes. Turning to the prosecutor, the court then discussed the theories under which the second victim's testimony would be admitted, suggesting that it could be admissible to show the chronology of why A.W.G. came forward with her accusations, which occurred after she found out that D.A.R., her sister, had been molested by appellant.
Mr. Fromang insisted that D.A.R. would, if put on the stand, recant her previous story and state that Appellant had never touched her. The judge asked Mr. Fromang why he would wish to sever if he believed that D.A.R. would testify in favor of appellant, and he responded " it's an advantage to me— I'm not saying it's not, but— but when I saw this, uh, where the Rule says we have the option to sever if we can, and I admit it's not timely, I agree with that." The judge expressed his concern that he had already read all four counts to the jury, so the judge and the attorneys discussed the appropriate way to inform the jury about the change, since, as the court said, " it's pretty obvious that they're ... aware of four counts." The court believed, however, that if D.A.R.'s testimony was ...