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Schwartzberg v. State

Florida Court of Appeals, Fourth District

March 29, 2017

ROBERT S. SCHWARTZBERG, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John Kastrenakes, Judge; L.T. Case No. 50-2011-CF-011814-AXXX-MB.

          Douglas I. Leifert of Douglas I. Leifert, P.A., Delray Beach, and Robert S. Gershman of Gershman & Gershman, P.A., Delray Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

          Levine, J.

         Appellant 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.

         Appellant 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.

         When 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 her vagina.

         The 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.

         Appellant was charged with false imprisonment, sexual battery, and domestic battery by strangulation.

         During 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.

         The 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.

         The 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.

         When 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, ...


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