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Taffe v. State

Florida Court of Appeals, Fourth District

December 13, 2017

RICHARD TAFFE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No. 12-3904CF10A.

          Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.

          Damoorgian, J.

         Appellant, Richard Taffe, appeals the trial court's order revoking his probation and sentencing him to fifteen years as a Habitual Felony Offender. Appellant argues that this Court should reverse because: 1) the evidence was insufficient to support the trial court's finding that Appellant violated his probation by committing the offense of witness tampering, and 2) one of the offenses for which the trial court found Appellant in violation, armed kidnapping, was not alleged in the charging affidavit. We affirm the revocation of Appellant's probation but remand for modification of the order to remove the armed kidnapping finding as discussed below.

         Background

         Appellant pleaded no contest to one count of felon in possession of a firearm and was sentenced to three years of probation. As a condition of his probation, Appellant was required to live without violating the law. While on probation, Appellant was arrested and charged with several offenses stemming from an armed robbery and kidnapping. Based on the foregoing, the State filed an Affidavit of Violation of Probation (VOP) which alleged that Appellant violated his probation by committing the new law offenses of: robbery with a firearm, aggravated assault with a firearm, armed false imprisonment, felony battery, burglary of a conveyance, grand theft, and witness tampering.

         At the VOP hearing, the State's evidence established that Appellant and two other men set up a bogus electronics transaction with a cellular phone store owner and, during the process, kidnapped and held the victim at gunpoint. While holding the victim hostage in a car, Appellant and one of his co-defendants discussed what they should do with the victim. Appellant stated that they should kill the victim to keep him from talking to the police. The co-defendant objected and told the victim that they would let him live, but threatened that they would kill the victim and his family if he ever spoke to the police. The co-defendant then took the victim's driver's license from his wallet before shoving the victim out of the car and onto the side of a road.

         Considering the foregoing evidence, the court revoked Appellant's probation, finding that he committed all of the new law violations alleged in the State's affidavit of VOP as well as the offense of armed kidnapping.

         Analysis

         a) The Witness Tampering Finding

         On appeal, Appellant argues that the court erred in finding that he violated his probation by committing the offense of witness tampering. Section 914.22 provides, in pertinent part, that a person commits the crime of witness tampering when that person:

(1) [K]nowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another ...

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