DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CALVIN MELVIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-4071 

[May 9, 2018]

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 
2

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 
3

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 and time served on the third count. 

“Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the 

lower court to make a pretrial determination of the law of the case when 

the facts are not in dispute, the standard of review on appeal is de novo.” 

State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016) (citation 

omitted). “The interpretation of a statute is a purely legal matter and 

subject to review de novo.” State v. Brock, 138 So. 3d 1060, 1062 (Fla. 4th 

DCA 2014). 

Appellant was charged with three counts of violating section 

837.055(2), Florida Statutes (2013). This statute was enacted in the wake 

of the Casey Anthony case. In that case, the defendant made false 

statements to the police during an investigation into the disappearance of 

her young daughter. Anthony v. State, 108 So. 3d 1111, 1113 (Fla. 5th 

DCA 2013). The child’s remains were later discovered near the defendant’s 

family home. Id. at 1116. The defendant was convicted of four counts of 

providing false information to a law enforcement officer, a first-degree 

misdemeanor. Id. at 1117. 

As a result of Anthony, the legislature enacted section 837.055(2), 

creating a third-degree felony when a person 

knowingly and willfully gives false information to a law 

enforcement officer who is conducting a missing person 

investigation involving a child 16 years of age or younger with 

the intent to mislead the officer or impede the investigation, 

and the child who is the subject of the investigation suffers 

great bodily harm, permanent disability, permanent 

disfigurement, or death . . . . 

§ 837.055(2), Fla. Stat. (2013). 

Thus, the plain language of the statute requires two elements: (1) 

knowingly and willfully giving false information to law enforcement during 

a missing child investigation, and (2) the child suffering great bodily harm, 

permanent disability, permanent disfigurement, or death. See id. In this 

case, both elements of the statute were met. As such, we find the trial 

court did not err in denying the motion to dismiss based on the plain 

language of the statute. See Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 
4

3d 294, 313 (Fla. 2017) (“When the language of the statute is clear and 

unambiguous and conveys a clear and definite meaning, there is no 

occasion for resorting to the [secondary] rules of statutory interpretation 

and construction; the statute must be given its plain and obvious 

meaning.”) (Lawson, J., concurring) (citation omitted). 

As to the sentencing issue, because appellant scored less than twentytwo points on the sentencing guidelines, the trial court was statutorily 

required to impose a non-state prison sanction unless the court made 

written findings that a non-state prison sanction would present a danger 

to the public. See § 775.082(10), Fla. Stat. (2013). In considering the 

propriety of an upward departure from a non-state prison sanction, a court 

may consider “criminal history, victim injury, and propensity for one to 

commit future crimes.” Reed v. State, 192 So. 3d 641, 646 (Fla. 2d DCA 

2016). 

In Jones v. State, 71 So. 3d 173 (Fla. 1st DCA 2011), the trial court 

found the defendant a danger to the public after he was convicted of 

driving while his license was suspended. The trial court reasoned that the 

defendant was likely to continue to drive without a license, which would 

endanger the public because it made it more likely he would attempt to 

elude law enforcement officers. The First District reversed, finding that 

“the court did not make sufficient findings . . . that imprisonment within 

the state prison system rather than the county jail would better deter him 

from continued unlicensed driving.” Id. at 176. 

In contrast, in Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), this 

court upheld a prison sentence for a defendant convicted of grand theft 

because the trial court articulated sufficient facts to sustain the requisite 

written finding that the defendant was a danger to the public. The trial 

court found, inter alia, that the theft was accomplished by writing a 

worthless check, which was consistent with the defendant’s lifelong modus 

operandi; that the defendant caused significant financial and emotional 

damage; and that he would continue to commit financial crimes against 

the public if not incarcerated. Id. at 964. Thus, the Porter court made 

sufficient written findings as to “criminal history, victim injury, and 

propensity for one to commit future crimes.” See Reed, 192 So. 3d at 646. 

Like in Jones, and unlike in Porter, here the trial court’s written order 

did not articulate sufficient facts to sustain a finding that appellant was a 

danger to the public as required by the statute. The trial court did not 

explain how appellant’s actions “put other young children at risk.” Nor 

did the trial court state how the lies appellant told on January 9 delayed 

the investigation when he confessed the very next day and the remains 
5

were found a day or two later. The trial court also did not make any 

findings as to appellant’s lack of any criminal history or propensity to 

commit future crimes. Because the trial court did not make sufficient 

findings that imprisonment within the state prison system rather than 

county jail or another potential non-state prison sanction would deter him 

from committing future crimes, we reverse appellant’s sentence and 

remand for the trial court to impose a non-state prison sanction. See id.

at 648. 

Affirmed in part, reversed in part. 

WARNER, J., concurs. 

GROSS, J., concurs specially with opinion. 

GROSS, J., concurring specially.

I concur in the majority opinion. One possible reading of section 

837.055(2), Florida Statutes (2013), is that the child who is the subject of 

investigation suffers harm after the giving of the false information, without 

there being any causal connection. If a criminal statute is ambiguous, we 

would normally apply the rule of lenity in section 775.021(1), Florida 

Statutes (2017), and construe the statute “most favorably to the accused.”

As the majority notes, the legislature amended the statute in response 

to the Casey Anthony case, where the death of a child preceded a mother’s 

giving of false information. We know this from the legislative history. See 

Florida Staff Analysis, H.B. 37, 4/10/2012. “Although not determinative 

of legislative intent, staff analyses are one touchstone of the collective 

legislative will.” Sun Bank/South Florida, N.A. v. Baker, 632 So. 2d 669, 

671 (Fla. 4th DCA 1994). We should not ignore the clear legislative history 

and engage in a hypertextual analysis of the statute to arrive at a result 

that the legislature sought to avoid in enacting the statute. 

* * *

Not final until disposition of timely filed motion for rehearing.