ROBERT S. SCHWARTZBERG, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; John Kastrenakes, Judge; L.T. Case No.
Douglas I. Leifert of Douglas I. Leifert, P.A., Delray Beach,
and Robert S. Gershman of Gershman & Gershman, P.A.,
Delray Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
raises several issues for our review, and we write to address
three. Appellant first argues the trial court erred in
redacting a portion of a 911 tape wherein appellant
referenced the victim's prior bad acts. Appellant next
argues that his two battery convictions violate double
jeopardy because they involved conduct occurring within the
same criminal episode. Finally, appellant argues that the
trial court improperly considered subsequent, uncharged
misconduct when sentencing him. We affirm appellant's
conviction, finding that the court did not abuse its
discretion in allowing the redaction and that the two battery
convictions do not violate double jeopardy. However, we
reverse appellant's sentence and remand for resentencing.
had been dating the victim for several months. One night,
after appellant passed his "Series 7 Exam, " he and
the victim went out to celebrate. After they returned to
appellant's home, the victim alleged appellant demanded
that she have sex with him. The victim refused.
the victim attempted to leave, appellant blocked the door.
The victim attempted to push past him, but appellant pushed
the victim to the bed. He then pressed his arm into her neck
so she could not breathe. The victim scratched at appellant,
and he took her hand in his and struck her mouth with her own
hand. Eventually, he got off of her, but continued to hit her
and prevent her from leaving. Appellant then pushed her back
onto the bed, pinned her down, and pushed his fingers into
victim was eventually able to escape the room and attempted
to call 911. Appellant said he would be the one to call 911
and told the victim she would go to jail. Appellant then
called 911 and told the operator that the victim had attacked
him and informed the operator that the victim had previously
been arrested for attacking a previous boyfriend.
was charged with false imprisonment, sexual battery, and
domestic battery by strangulation.
trial, the state sought to introduce a redacted recording of
appellant's 911 call into evidence. The state sought to
redact the following statements from the 911 call: (1)
"She has an arrest report for previously assaulting
another boyfriend."; (2) "She was previously
arrested because she assaulted her boyfriend."; (3)
"If you Google it on the Google she's the second
name down she has an arrest record and she has a picture.
It'll come right up. She was arrested in Miami Dade. She
lives in Boynton Beach right now, but she was arrested in
Miami Dade."; and (4) "Cause she's been
arrested for this. She had a previous boyfriend and they got
in a fight in Miami and she punched him in the nose and like
broke his nose or some sh-t, and he called the cops on
her." Appellant objected to the redaction, claiming it
violated the rule of completeness.
trial court found that the rule of completeness required only
admission of the first statement, which appellant made in
response to the operator's question regarding the
victim's identity. The court could not hear the second
portion of the tape, whereupon the state withdrew its
objection. However, the court found that the rule of
completeness did not compel admission of the third and fourth
statements because they did not "put into context,
amplify, [or] explain" what the operator had said.
Appellant made the third statement in response to the
operator's request to spell the victim's name, and
appellant made the fourth statement in response to the
operator's request not to hang up.
jury found appellant guilty of false imprisonment as charged.
The jury also found appellant guilty of battery as a
lesser-included offense to sexual battery and battery as a
lesser-included offense to domestic battery by strangulation.
sentencing appellant, the court considered a subsequent,
uncharged episode of misconduct wherein appellant allegedly
made unwanted sexual advances towards a different woman. The
court, considering both the criminal conduct of which
appellant was convicted as well as the uncharged conduct,
sentenced appellant to four years in prison followed by one
year of community control for false imprisonment, ...