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Gammage v. State

Florida Court of Appeals, Second District

August 2, 2019

PATRICK GAMMAGE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for DeSoto County; Don T. Hall, Judge.

          Robert David Malove of Law Office of Robert David Malove, P.A., Fort Lauderdale, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Kelly O'Neill, Assistant Attorney General, Tampa, for Appellee.

          VILLANTI, JUDGE.

         Patrick Gammage appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In that motion, Gammage raised a single claim, contending that his convictions for three counts of attempted tampering with jurors violate double jeopardy. Because all of the actions at issue here occurred during a single criminal episode and did not constitute distinct acts, only one conviction was proper. Therefore, we reverse two of Gammage's three convictions and remand for the postconviction court to resentence Gammage using a corrected scoresheet.

         The background facts, as reflected in both the record and this court's opinion of December 30, 2015, establish that Gammage was charged with several drug offenses that were set for trial on October 23, 2013. On that date, Gammage gave his girlfriend and another friend a stack of flyers to hand out to prospective jurors as they were arriving at the DeSoto County courthouse in Arcadia for jury duty.[1] The flyers contained an Internet article about a confidential informant who had recently admitted to lying and planting evidence to help law enforcement make arrests in DeSoto County. While this particular confidential informant was not testifying against Gammage and played no role in his case, another confidential informant was involved in Gammage's case. Gammage specifically told his girlfriend that the purpose of handing out the flyers was to influence prospective jurors concerning the credibility of testimony from any confidential informant. Gammage's girlfriend handed out three flyers to three separate prospective jurors during a period of about twenty minutes. She stopped at that point because the time had passed for Gammage's trial to start. Apparently, the other friend did not hand out any flyers.

         An off-duty police officer observed this conduct and obtained one of the flyers from one of the prospective jurors. The officer then notified a bailiff, who in turn notified the trial court. Gammage's trial on the drug charges was continued, and the State filed three new charges against Gammage for tampering with jurors in violation of section 918.12, Florida Statutes (2013).

         At Gammage's trial on the tampering charges, the evidence showed that three prospective jurors were approached in the parking lot and on the sidewalks leading up to the courthouse all within approximately twenty minutes of each other. Once the time for prospective jurors to arrive at the courthouse had passed, Gammage's girlfriend stopped attempting to hand out flyers. And after Gammage's drug trial was continued, she did not attempt to hand out flyers again, whether after a lunch break or on another day. Based on this evidence, the jury convicted Gammage of all three counts of tampering with jurors, and he was sentenced to three consecutive terms of five years in prison.

         On direct appeal, this court determined that convictions for the completed offense were improper. Therefore, we reversed the convictions and remanded for entry of convictions for attempted tampering with jurors. See Gammage v. State, 181 So.3d 1256 (Fla. 2d DCA 2015). Gammage did not raise the double jeopardy issue in that appeal.

         On remand, the trial court entered an amended judgment and resentenced Gammage to the same sentences he had received previously. Gammage appealed his new sentences, and this court affirmed without opinion. See Gammage v. State, 231 So.3d 1255 (Fla. 2d DCA 2017) (table decision). Gammage did not raise the double jeopardy issue in that appeal either.

          Gammage then filed a timely rule 3.850 motion, raising as his sole issue the argument that his three convictions for attempted tampering with jurors violated double jeopardy because, under the "a/any" test, the statute was ambiguous and so only one conviction was permitted for all tampering that occurred in a single criminal episode. See Grappin v. State, 450 So.2d 480, 482 (Fla. 1984) (explaining the "a/any" test and noting that a statute that criminalizes the act of taking "any firearm" is ambiguous such that only one prosecution will be permitted for all firearms taken in a single episode). The State filed a response arguing that even if the "a/any" test limited the number of prosecutions for all tampering in a single episode, Gammage's convictions should be affirmed because his girlfriend's approach to each prospective juror should be considered a separate criminal episode. The postconviction court agreed with the State and summarily denied the motion. Gammage now appeals this ruling.

         As an initial matter, it is settled law that a claim that a defendant's convictions violate double jeopardy may be raised under rule 3.850, even when the defendant could have raised the issue in a direct appeal from his judgment and sentence. See Plowman v. State, 586 So.2d 454, 455 (Fla. 2d DCA 1991) (citing State v. Johnson, 483 So.2d 420, 422 (Fla. 1986)); see also Gardner v. State, 30 So.3d 629, 630 (Fla. 2d DCA 2010), disapproved of on other grounds by Dunbar v. State, 89 So.3d 901, 905-07 (Fla. 2012). Hence, despite the fact that Gammage filed two earlier appeals in which he could have raised the double jeopardy issue he now raises, the issue is not procedurally barred and so was properly considered on its merits by the postconviction court.

          Turning to those merits, the question before this court is whether Gammage's three convictions for attempted tampering with jurors violate double jeopardy. To properly address this question, we must first determine, if possible, the legislature's intent under the language of section 918.12. If the statutory language clearly shows that the legislature intended to permit a separate prosecution for the tampering with each individual juror, then Gammage's three convictions should be affirmed. If, however, the statutory language is too ambiguous to permit a determination of legislative intent, the rule of lenity would require that approaches to multiple jurors in a single criminal episode be punished only once. And if that is the case, we must next determine whether Gammage's girlfriend's acts occurred during a single criminal episode. If so, we must then determine whether her acts constituted "distinct acts" during the course of that single episode. If the convictions all arose during a single criminal episode and if they are not predicated on distinct acts, two of Gammage's three convictions must be reversed. See, e.g., Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010) ("[I]n order to determine if appellant's convictions violate double jeopardy, we must first ascertain if the charges were based on an act or acts which occurred within the same criminal transaction and/or episode. If the charge did occur during the same transaction or episode, we must then determine if the convictions were predicated on distinct acts.").

         1. Unit ...


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