FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-1350

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DEMEKO LADJUAN SIMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

W. Joel Boles, Judge.

December 10, 2018

WINSOR, J.

Demeko Ladjuan Sims was convicted of armed robbery and 

petit theft, and he received a life sentence as a Prison Releasee

Reoffender. See § 775.082(9), Fla. Stat. Sims now appeals, raising 

an evidentiary issue, alleging ineffective assistance of counsel, 

claiming a double-jeopardy violation, and challenging the 

constitutionality of his sentence. We affirm. 

I.

There was a robbery at a Pensacola Quick Mart store. Two 

masked men entered the store, pointed guns at two clerks, and 

took one clerk’s phone and wallet, along with $700. Store cameras 

captured video and still photos of the robbery. 
2

Police suspected Sims and another man were involved in a 

series of armed robberies, including this one. The other man, 

Joseph Vaughn, was Sims’s roommate, and his truck had been 

under surveillance for a while. About a week after the robbery, 

officers pulled over Vaughn’s truck, found Vaughn and Sims 

inside, and arrested them both.

In a subsequent interview, Sims initially denied participating 

in the robbery. But he finally confessed after officers confronted 

him with surveillance photos showing distinctive markings on the

masked robber’s pants. Sims ultimately admitted that he and 

Vaughn had robbed the store using two revolvers, one black and 

one silver. Following the confession, officers secured a search 

warrant for Vaughn’s truck and the men’s apartment. Officers 

found two revolvers and two camouflage jackets in the truck; in the 

apartment, they found a pair of pants with the same distinctive 

markings. 

The State charged Sims with armed robbery, grand theft, and 

possession of a firearm by a convicted felon. The jury convicted 

Sims of armed robbery and petit theft (as a lesser included of grand 

theft). The felon-in-possession charge, which had been severed, 

was later dismissed. 

II.

A.

Sims first argues that the court erred in admitting testimony

that officers were looking for Vaughn’s truck and that it had been 

under surveillance. According to Sims, the court should have 

excluded the evidence under section 90.403, which precludes 

evidence “if its probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of issues, misleading the jury, 

or needless presentation of cumulative evidence.” We review this 

issue only for an abuse of discretion, Hudson v. State, 992 So. 2d 

96, 107 (Fla. 2008), and we find none. The trial court acted within 

its discretion in allowing testimony explaining how officers first 

contacted Sims. Regardless, we conclude that if this were error, it 

was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 

1986).
3

B.

Second, Sims argues that his trial counsel should have moved 

for a judgment of acquittal “on the basis that the state failed to 

introduce identity and corpus delicti before introducing Sims’s 

admission.” Init. Br. at 17. Trial counsel’s failure in this regard, 

Sims maintains, shows constitutional ineffectiveness and a 

corresponding Sixth Amendment violation. 

“With rare exception, ineffective assistance of counsel claims 

are not cognizable on direct appeal.” Ellerbee v. State, 87 So. 3d 

730, 739 (Fla. 2012). That rare exception applies only when the 

appellant demonstrates ineffectiveness on the face of the record, 

“indisputable prejudice,” and the lack of any conceivable tactical 

explanation for counsel’s action. Morales v. State, 170 So. 3d 63, 67 

(Fla. 1st DCA 2015). Here, the record includes nothing to show

Sims’s counsel should have made the corpus-delicti argument Sims 

asserts on appeal. 

The corpus-delicti rule turns on the “fundamental principle of 

law that no person be adjudged guilty of a crime until the state has 

shown that a crime has been committed.” State v. Allen, 335 So. 2d 

823, 825 (Fla. 1976). Therefore, before introducing evidence of a 

confession, the State must show that there was some crime. Burks 

v. State, 613 So. 2d 441, 443 (Fla. 1993); see also Allen, 335 So. 2d 

at 825 (“A person’s confession to a crime is not sufficient evidence 

of a criminal act where no independent direct or circumstantial 

evidence exists to substantiate the occurrence of a crime. The 

judicial quest for truth requires that no person be convicted out of 

derangement, mistake or official fabrication.”). The proof of some 

crime need not be “overwhelming or uncontradicted,” and the State 

need not prove that the defendant was the culprit before 

introducing evidence of a confession. Acoff v. State, 180 So. 3d 185, 

188 (Fla. 1st DCA 2015); see also Ramirez v. State, 133 So. 3d 648, 

651 (Fla. 1st DCA 2014). As long as the State puts on evidence of 

a crime, it can follow with evidence of an otherwise admissible

confession. 

Before the State introduced testimony about Sims’s 

confession, it presented testimony from the robbery victims (the 

Quick Mart employees), and it introduced surveillance video 

showing two masked men robbing the store. This was sufficient. 
4

Any motion for judgment of acquittal based on the corpus-delicti 

rule would have been meritless, so counsel acted appropriately in 

not making one. See Hartley v. State, 206 So. 3d 836, 838 (Fla. 1st 

DCA 2016) (counsel not ineffective for failing to make futile 

objections or motions).1

C.

Sims’s third argument on appeal is that double-jeopardy 

principles preclude convictions for both armed robbery and petit 

theft. The State agrees, confessing error and concluding the petit

theft conviction must be vacated. But we are not required to accept 

the State’s confession, and before we reverse any criminal 

judgment, we must be certain the law requires reversal. Perry v. 

State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002). Here, we cannot 

agree with Sims or the State on the double-jeopardy argument. 

Sims relies on J.C.B. v. State, in which this court held that 

“[a] charge of robbery necessarily includes the elements of a charge 

of petit theft in that in proving a charge of robbery under section 

812.13, the State must also prove the elements of petit theft under 

section 812.014(2)(c).” 512 So. 2d 1073, 1074 (Fla. 1st DCA 1987). 

Sims then argues that because petit theft was a necessary lesser 

included of robbery, he could not be convicted of both. The State 

bases its agreement on Sullivan v. State, a short opinion in which 

we reversed a petit theft conviction based on double jeopardy. 631 

 1 To the extent Sims argues that his confession could not be 

admitted unless the State had proof of the crime and the culprit’s 

identify before obtaining the confession—cf. Init. Br. at 20 (“[T]he 

corpus delicti and identity of the robbers were obtained from 

evidence retrieved under a search warrant only after Sims 

allegedly confessed.”); id. at 21 n.1 (“However, a pair of pants with 

the same distinctive back pockets as seen on one of the suspects in 

the store video was retrieved from the apartment where Sims was 

staying after the deputy interrogated Sims, obtained the search 

warrant and it was executed at the apartment.” (emphasis in 

original))—Sims misunderstands the rule. The State is not 

precluded from introducing a confession simply because the 

confession preceded (or even initiated) the investigation that led to 

charges. 
5

So. 2d 1142, 1142 (Fla. 1st DCA 1994). We noted that the “dual 

offenses [petit theft and robbery] arose from a single criminal 

episode against a single victim,” and we held that the lesser 

conviction must be vacated. Id. 

Both Sims and the State have overlooked the Florida Supreme 

Court’s decision in McKinney v. State, which held that double 

jeopardy does not prohibit dual convictions for robbery and theft. 

66 So. 3d 852, 856-57 (Fla. 2011). In McKinney, the court explained 

that “[t]here is no constitutional prohibition against multiple 

punishments for different offenses arising out of the same criminal 

transaction as long as the Legislature intends to authorize 

separate punishments.” Id. at 854. And to determine whether the 

Legislature authorized separate punishments for robbery and 

theft, it looked to section 775.021, which provides that “[t]he intent 

of the Legislature is to convict and sentence for each criminal 

offense committed in the course of one criminal episode or 

transaction.” § 775.021(4)(b), Fla. Stat. The Legislature provided 

three “[e]xceptions to this rule of construction,” one of which Sims 

contends is applicable here: “Offenses which are lesser offenses the 

statutory elements of which are subsumed by the greater offense.” 

Id. § 775.021(4)(b)3.

In McKinney, the court rejected the argument that grand theft 

and robbery fit in this exception. It did so by comparing elements 

of the statutory offenses and concluding that each offense included 

an element that the other did not. Id. at 857. Robbery required a 

showing of “force, violence, assault, or putting in fear,” which 

grand theft did not, and grand theft required proof of the value of 

property taken, and robbery did not. Id. (quoting statute). That 

was enough to show that the exception did not apply, that “neither 

offense is wholly subsumed by the other” or necessarily included 

in the other. Id. Thus, there was no double-jeopardy violation.

The same is true here. Sims’s first-degree petit theft 

conviction required proof that he took property valued between 

$100 and $300. § 812.014(2)(e), Fla. Stat. The robbery conviction 

required no such showing, but it did require a showing of force or 
6

threat, which the theft charge did not. Just as in McKinney, there 

was no double-jeopardy violation.2

D.

Finally, Sims argues that his life sentence was 

unconstitutional. His sentence was based on section 775.082(9), 

which requires a life sentence for a “Prison releasee reoffender,” 

defined to include someone who commits robbery within three 

years after release from prison. Id. Sims argues that under Alleyne 

v. United States, 570 U.S. 99 (2013), the Sixth Amendment 

requires a jury—not a judge—to determine his eligibility for a PRR 

sentence. 

Sims acknowledges that his argument is foreclosed by our 

decision in Williams v. State, in which we explicitly held “that 

Alleyne does not require a jury to make the PRR factual 

determination.” 143 So. 3d 423, 424 (Fla. 1st DCA 2014). He argues 

that we should recede from this decision, but we are powerless to 

do that absent en banc review. Each panel decision is binding on 

future panels, absent an intervening decision of a higher court or 

this court sitting en banc. Taylor Eng’g, Inc. v. Dickerson Florida, 

Inc., 221 So. 3d 719, 723 n.3 (Fla. 1st DCA 2017); see also In re Rule 

9.331, Determination of Causes by a Dist. Court of Appeal En Banc, 

Fla. R. App. P., 416 So. 2d 1127, 1128 (Fla. 1982) (“[T]he suggestion 

that each three-judge panel may rule indiscriminately without 

regard to previous decisions of the same court is totally 

inconsistent with the philosophy of a strong district court of appeal 

which possesses the responsibility to set the law within its 

district.”).

Sims also suggests that the Supreme Court’s decision in Hurst 

v. Florida, 136 S. Ct. 616 (2016)—issued after Williams—

mandates a different outcome despite Williams. Even if we were 

otherwise inclined to agree, however, this court has reaffirmed its 

 2 Even if the petit theft conviction did not require proof of 

value, it is not clear there would have been a double-jeopardy 

violation. Unlike in Sullivan, where the offenses were “against a 

single victim,” 631 So. 2d at 1142, there were multiple victims 

here. 
7

Williams holding even after Hurst. See Murphy v. State, 227 So. 3d 

242 (Fla. 1st DCA 2017), cert. denied sub nom. Murphy v. Florida, 

138 S. Ct. 1270 (2018) (“We affirm in all other respects, and reject, 

as we have before, the argument that a prison releasee reoffender 

sentence is unconstitutional if a jury did not make the finding that 

the defendant was released within the previous three years.”). We 

are therefore bound to reject Sims’s argument and affirm his 

sentence.

AFFIRMED. 

WOLF and JAY, 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 Kathleen Pafford and Joanna 

A. Mauer, Assistant Public Defenders, Tallahassee, for Appellant.

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

Assistant Attorney General, Tallahassee, for Appellee.