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Melvin v. State

Florida Court of Appeals, Fourth District

May 9, 2018

CALVIN MELVIN, 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; Matthew I. Destry, Judge; L.T. Case No. 13-4752 CF10A.

          Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

          LEVINE, J.

         Appellant appeals his convictions and sentences for three counts of providing false information to law enforcement in a missing child investigation. Appellant raises several issues, including that the trial court erred in denying his motion to dismiss and in finding that a non-state prison sanction presented a danger to the public. We affirm the denial of the motion to dismiss based on the plain language of the statute under which appellant was charged. However, we reverse appellant's sentence because the trial court's order was insufficient to support a finding that appellant was a danger to the public. We affirm the remaining issues without comment.

         Appellant was charged with three counts of providing false information to law enforcement during the investigation of his missing child. He made the allegedly false statements on January 9 and 10, 2013. On January 11 and 12, the child's skeletal remains were found in the backyard of the residence appellant had shared with Brittney Cierra, who was his girlfriend and the deceased child's mother. Forensics determined that the child had died in July 2011 at the age of five months, around the same time the child had gone missing.

         Appellant moved to dismiss the charges, arguing there was no nexus between the false information he provided to law enforcement and the child's death since the child had died a year and a half before he gave the false information. The state argued that the statute and jury instruction did not contain any language requiring a causal connection. The trial court agreed with the state and denied the motion to dismiss. Thereafter, appellant entered an open plea to the charges, reserving the right to appeal the denial of his motion to dismiss.

         Testimony during the sentencing hearing revealed that on January 9, 2013, Child Protective Services and a police officer went to appellant and Cierra's house to investigate the well-being of the children residing there. According to a report, Cierra used drugs, verbally abused the children, and threatened to physically harm them. At the house, when questioned about the missing child's whereabouts, appellant told the authorities that the child was with the paternal grandmother. When the child could not be located, a detective became involved in the case.

         The next day, during a five-hour long interview with the police, appellant repeatedly stated that the child had been taken to a fire station. Towards the end of the interview, appellant admitted he believed the missing child was dead because he had an argument with Cierra and left for a couple of months. When he came back, Cierra said, "[I]f you love me . . . you will forgive me, " but would not tell him what she was referring to. He told the detectives to "look under the ground" behind the house where appellant used to live with Cierra and drew a map for the detectives. A search of the backyard revealed the skeletal remains of the missing child.

         Appellant testified that he lied to the police because he was "in love, and being stupid." According to appellant, Cierra threatened to harm the children every time he left her. Appellant also testified he told the police that there was a spot in the backyard where Cierra would sit and cry.

         After the hearing, the trial court found that imposing a non-state prison sanction on appellant would present a danger to the public. The court stated:

Through his lies and misdirection, the Defendant confused and delayed the investigation in the disappearance of a child, his child, who was ultimately found dead and buried in his own backyard. The Defendant's actions put other young children at risk; most directly those who lived in the home with him and his paramour. His actions would allow others to carry out violence against children with potential impunity.

         The trial court sentenced appellant to consecutive terms of five years' imprisonment on two counts ...


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