FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-555

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TREVOR AMOS BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

John L. Miller, Judge.

July 9, 2018

WETHERELL, J.

Trevor Amos Brown appeals his conviction for use of a firearm 

during the commission of a felony in violation 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 of 

Criminal Procedure 3.151(c). We agree and reverse.

I

This case stems from a drug deal gone bad. It is undisputed 

that Brown went to the victim’s house to buy marijuana and that

he shot the victim. However, the circumstances of the shooting 

were disputed. Brown claimed that he shot the victim in selfdefense after the victim and another man attacked him and tried

to rob him of the money that he brought to buy the marijuana. By 
2

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) aggravated 

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 “No Prosecution with 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 after the first trial, the State filed a second1 amended 

information (re)charging Brown with aggravated battery with a 

firearm and adding a new charge of use of a firearm during 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 guilty on the use-ofa-firearm count and deadlocked (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 only 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 

prosecutor 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-firearm 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 of 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 been 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.

The 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 behind 

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.”). Offenses are “related” for purposes of the rule “if they 

are triable 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). “The state can establish the necessary 

connection by demonstrating (1) an uninterrupted crime spree or 

(2) a causal link irrespective 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’s 
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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 instances”); State v. Varnum, 991 So. 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 previous 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 fits squarely under rule 3.151(c).

Indeed, the circumstances of this case are materially 

indistinguishable from Franklin. There, 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 an 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 conviction, explaining:

 3 The prosecutor stated: “Of course, it’s related. We could not 

bring in another charge for something that’s completely 

unrelated.”
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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 warrant 

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 court 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 carrying 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-ofa-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 991 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 because 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.

III
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 In sum, because the 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.

REVERSED and REMANDED with instructions. 

RAY and OSTERHAUS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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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.