## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
No. 1D 17

- 555

_____________________________
T REVOR A MOS B ROWN , Appellant,

v.

S TATE OF F LORIDA , Appellee.

_____________________________

On appeal from the Circuit Court for Escambia County

. John L. Miller , Judge

. July 9, 2018

W ETHERELL , J

. Trevor Amos Brown appeals his conviction for use of a firearm during the commission of a felony in violati on of section 790.07(2), Florida Statutes (2015)

. He argues that the trial court should have dismissed the charge pursuant to his motion under Florida Rule o f Criminal Procedure 3.151(c)

. We agree and reverse.

I

This case stems from a drug d eal gone bad . It is undisputed that Brown went t o t he victim’s house to buy marijuana and that he shot th e victim. However, t he circumstances of the shooting were disputed. Brown claimed that he shot the victim in self

defense after the victim and another man attac ked him and tried to rob him of the money that he brought to buy the marijuana. By2 contrast, the victim claimed that Brown shot him during the foot chase that ensued after Brown took the satchel containing the marijuana without paying.

Brown was arrested for (1) armed robbery, (2) a ggravated battery with a firearm , and (3) use of a firearm during the commission of a felony, but he was only charged with the first two offenses. Brown was not charged with the third offense because

, according to the “ N o P ros ecution w ith Charges ” document filed by the prosecutor contemporaneously with the original information

, that offense was “combined in counts 1 and 2. ” The case proceeded to trial at which the jury found Brown not guilty of armed robbery (and its lesser included offenses) and deadlocked on aggravated battery.

Shortly a fter the first trial, the State filed a second 1 amended information (re) charging Brown with aggravated battery with a firearm and adding a new charge of use of a firearm dur ing the commission of a felony. The underlying felony for the latter charge was the attempted purchase of “20g or more” of marijuana, not the robbery or the aggravated battery. 2

Brown filed a motion to dismiss the use

- of

- a

- firearm count pursuant to rule 3. 151(c) because that charge stemmed from the same criminal episode as the armed robbery charge for which he was acquitted in the first trial. The trial court denied the motion and the case proceeded to trial.

At the second trial, the jury found Brown guil ty on the use

- of

a

- firearm count and d eadlocked (again) on the aggravated battery
count . The trial court adjudicated Brown guilty of use of a firearm

1 An amended information was filed prior to the first trial, but like the original information, it onl y charged Brown with armed robbery and aggravated battery with a firearm

.

2 The record does not explain why the drug transaction was not used as the underlying felony from the outset . However, the “No Prosecution with Charges” document implies that the
pr osecutor originally considered only the armed robbery or the aggravated battery to be the underlying felony

.3 during the commission of a felony and sentenced him to two years of community control followed by three years of probation. The State nol prossed the aggravated battery count

. This appeal followed.

II

We review de novo Brown ’s claim that he was entitled to dismissal of the use

- of

- a

- fire arm count under rule 3.151(c). See O’Leary v. State , 109 So. 3d 874, 876 (Fla. 1st DCA 2013) (“We review a trial court ’ s denial of a motion to dismiss under a de novo standard of review.” )

.
Rule 3.151 (c) provides:

(c) Dismissal o f Related Offenses After Trial. When a defendant has been tried on a charge of one of two or more related offenses, the charge of every other related offense shall be dismissed on the defendant’s motion unless [1] a motion by the defendant for consolidation of the charges has be en previously denied, or [2] unless the defendant has waived the right to consolidation, or [3] unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging the other offense or offenses.

Th e rule is intended to “protect defendants from successive prosecutions based upon essentially the same conduct.” Franklin v. State , 719 So. 2d 938, 940 (Fla. 1st DCA 1998); see also Dixon v. State

, 486 So. 2d 67 , 69 (Fla. 4th DCA 1986) (“ The purpose behin d rule 3.151(c) is to allow the defendant a means to protect himself (by motion to dismiss) from multiple trials on charges of related offenses when he has already suffered a prior trial on a related offense.” ). Offe nses are “related” for purposes of the rule “if they
are t riable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.” Fla. R. Crim. P. 3.151(a)

. “T he state can establish the necessary connection by demonstrating (1) an uninterrupted crime spree or (2) a causal link irresp ective of the passage of time.” Lindsey v. State , 220 So. 3d 1255, 1257 (Fla. 1st DCA 2017 ); see also Paul v. State , 385 So. 2d 1371, 1372 (Fla. 1980) (adopting Judge Smith’s4 dissent in Paul v. State , 365 So. 2d 1063 (Fla. 1st DCA 1979) , which explained that rule 3.151 “refer[s] to ‘connected acts or transactions’ in an episodic sense” rather than charges that “are ‘connected’ only by similar circumstances and the accused ’ s alleged guilt in both or all in stances”) ; State v. Varnum , 991 S o. 2d 918, 920 (Fla. 4th DCA 2008) (“Dismissal under Rule 3.151(c) . . . is required only where the offenses arise out of a single criminal episode.”).

Here, as the prosecutor conceded at the hearing on the defendant’s motion to dismiss, 3 the use

- of

- a

- firearm count is

“ related ” to the offenses that were the subject of the first trial because the offenses were inextricably intertwined and occurred during a single ten

- minute criminal episode

— the drug deal gone bad. The offenses could have been prosecuted in the same court
, and none of the exceptions in rule 3.151(c) are present because Brown did not file a pr evious motion for consolidation, he did not waive his right to consolidation, and there is no showing that the prosecution was unable, by due diligence, to obtain sufficient evidence to charge the use

- of

- a

- firearm offense at the outset. Thus
, like Franklin
, supra , this case fi ts squarely under rule 3.151(c)

. Indeed, t h e ci rcumstances of this case are materially indistinguishable from Franklin

. The re, as here, the defendant was charged with two offenses (DUI manslaughter and leaving the scene of an accident involving death ) arising out of a single incident (a car accident); the defendant was acquitted on one of the
counts (leaving the scene of a n accident) and the jury deadlocked on the other count (DUI manslaughter); the defendant was subsequently recharged with the offense on which the jury deadlocked and he was also charged with a new offense stemming from the same incident (leaving the scene of an accident involving injury ); and, after the defendant’s motion to dismiss the new charge pursuant to rule 3.151(c) was denied, the defendant was convicted of the new charge. Franklin , 719 So. 2d at 939. On appeal, we reversed the defendant’s convict ion , explaining:

3 The prosecutor stated: “Of course, it’s related. We could not bring in another charge for something that’s completely unrelated.”5 This case fits squarely under rule 3.151(c). . . . . There can be no argument that the charges are not ‘related offenses,’ because they arise from the same automobile accident and could be tried in the same court. See Fla. R.Crim. P. 3. 151(a). Moreover, it is undisputed that appellant did not file a previous motion for consolidation; nor did he waive his right to consolidation, and there is no showing that the prosecution was unable, by due diligence, to obtain sufficient evidence to wa rrant charging the other offense. See Fla. R.Crim. P. 3.151(c). Finally, although a mistrial was declared on the DUI manslaughter charge, appellant was nonetheless tried and acquitted on the leaving

- the

- scene charge; therefore, he was tried on a charge of one related offense. Id. Under the circumstances, the trial co urt erred in denying appellant's motion to dismiss under rule 3.151(c), and the conviction for leaving the scene must be reversed.

Id. at 940; see also Fields v. State

, 743 So. 2d 92 (Fla. 5th DCA 1999) (relying on Franklin to reverse conviction for carryi ng a concealed firearm charge that was based on the same incident for which the defendant was acquitted of assault or battery while armed). Accordingly

, Franklin compels reversal of Brown’s use

- of

a

- firearm conviction.

We have not overlooked the Varnum case relied on by the State, but we find that case distinguishable. The offenses at issue in Varnum arose out of entirely different real estate transactions that occurred over the course of a two

- year period and involved different alleged victims

. See 9 91 So. 2d at 919

– 20. The court held that the offenses were not “ related” to the offenses for which the defendant was previously tried and acquitted bec ause the offenses were committed in a different manner and arose out “temporally separate episode [s]” that were only connected by “ similar circumstances and [the defendant] ’ s alleged guilt in all instances .” Id. at 921. By contrast, here, the use

- of

- a

- firearm count arose out of the exact same criminal episode as the robbery for which Brown was previously tried and acquitted.

III6 In sum, because t he use

- of

- a

- firearm charge was “related” to the robbery offense for which Brown was previously tried and acquitted, the trial court erred in denying Brown’s motion to dismiss that charge pursuant to rule 3. 151(c). Accordingly, we

reverse Brown ’s conviction and remand for entry of an order dismissing the use

- of

- a

- firearm charge

.
R EVERSED and R EMANDED with instructions

.
R AY and O STERHAUS , JJ., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

Andy Thomas, Public Defender, and Kevin Steiger, Assistant Public Defender, Tallahassee

, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee

, for Appellee.