Opinion
No. 1D21-1494
10-12-2022
Emilio Sifuenties JACK, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
Per Curiam.
Appellant challenges his conviction for second-degree murder with a deadly weapon and robbery with a deadly weapon raising three issues. We affirm the judgment and life sentence, vacate the sentencing order as to certain costs and fines imposed, and remand with instructions for the trial court to consider imposition of a fee.
At trial, Appellant's former girlfriend, Kayla Kostick, testified against Appellant under a plea agreement. Kostick testified that she saw Appellant choke the victim and then stab him multiple times with screwdrivers. Kostick testified that after Appellant stabbed the victim, Appellant stole the victim's pickup truck. Kostick and Appellant then fled the scene of the murder.
Kostick testified that Appellant then told her what to say if questioned about when she last saw the victim. Appellant asked Kostick, "Are you with me?" At trial, Kostick answered affirmatively when asked if she was "ever concerned that [Appellant] was going to hurt you if you came forward or talked."
Kostick was then asked if Appellant had ever said, "anything to you about a certain number." Appellant's trial counsel objected to "the witness talking about any number of alleged murders that Mr. Jack has claimed to have made to her." The basis of the objection was "there's no evidence that any of this talk has ever taken place" and that the statement was prejudicial. The State agreed that the purported statement was prejudicial but not unfairly so. The State argued that the statement would show consciousness of guilt by Appellant, and it would also show Appellant's attempt to tamper with and intimidate Kostick. The trial court overruled that objection. Kostick then testified that Appellant "said that's [sic] makes victim number 23."
One of Appellant's contentions here is that Kostick's testimony about Appellant supposedly committing prior murders was improper Williams rule evidence. See Williams v. State , 110 So. 2d 654, 662 (Fla. 1959) (allowing the admission of prior bad act evidence "to show plan, scheme or design"); see also § 90.404(2)(a), Fla. Evid. Code (allowing the admission of prior bad act evidence for certain purposes but not "solely to prove bad character or propensity"). However, that was not the basis for the objection before the trial court. So Appellant's claim of improper Williams rule evidence was not preserved. See State v. Johnson , 295 So. 3d 710, 713 (Fla. 2020) (quoting Harrell v. State , 894 So. 2d 935, 939 (Fla. 2005) ) ("Generally, except in cases of fundamental error, we require parties ‘to preserve issues for appellate review by raising them first in the trial court.’ ").
Appellant next argues that he was entitled to trial by a twelve-person jury. Appellant did not make this argument before the trial court and as such it was not preserved. See § 924.051(1)(b), Fla. Stat. Again, except for fundamental error, we cannot consider an unpreserved argument on appeal. See Baptiste v. State , 324 So. 3d 453, 455 (Fla. 2021) ; § 924.051(3), Fla. Stat. Appellant claims the six-person jury deprived him of a fair trial, amounting to fundamental error. We disagree.
Williams v. Florida , 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), approved Florida's six-person jury scheme for noncapital cases and remains binding law. See Phillips v. State , 316 So. 3d 779, 786 (Fla. 1st DCA 2021). Thus, no fundamental error occurred when Appellant was tried and convicted by a six-person jury on noncapital charges.
Finally, Appellant contends that the imposition of certain costs and fines at sentencing without notice and opportunity to be heard was improper. Appellant preserved this issue with a motion under rule 3.800(b)(2), Florida Rules of Criminal Procedure. Appellant challenges the $150.00 discretionary public defender fee imposed under section 938.29, Florida Statutes ; the $10.00 surcharge imposed under section 938.04, Florida Statutes ; and the $200.00 fine imposed under section 775.083(1), Florida Statutes. We agree that the sentencing order should be vacated as to these costs and fines. See Davis v. State , 277 So. 3d 1111, 1114 (Fla. 1st DCA 2019) ("Because these are discretionary costs, the court was required to specifically pronounce them at sentencing" to give the defendant "notice and an opportunity to be heard."); Trusty v. State , 210 So. 3d 758, 760 (Fla. 1st DCA 2017) (same). We therefore remand to the trial court with instructions to strike the fine and surcharge. The trial court may conduct an appropriate hearing with proper notice to consider the imposition of the discretionary public defender fee under section 938.29.
AFFIRMED in part, VACATED in part, and REMANDED with instructions.
Rowe, C.J., and Tanenbaum, J., concur; Bilbrey, J., concurs with opinion.
Bilbrey, J., concurring. I concur in the majority opinion. I note that even if preserved, the admission of Kayla Kostick's testimony that, after the killing, Appellant told her "that makes victim number 23" was not an abuse of the trial court's discretion. When a boast of other victims is made "on a wholly different occasion that when the ... murders occurred," testimony about the boast has been held impermissible and unfairly prejudicial. See Smith v. State , 866 So. 2d 51, 59 (Fla. 2004) (distinguishing levels of relevance of boasts depending on the timing of such statements); Delgado v. State , 573 So. 2d 83, 84–85 (Fla. 2d DCA 1990). But here, the testimony of Kostick about boasts Appellant made during the criminal episode was relevant to foreclose an anticipated identity defense by Appellant. Smith , 866 So. 2d at 59 (holding that defendant's statement about past victims was relevant to prove his identity as the shooter where identity "was a crucial issue at the trial"). The testimony was also relevant to show that Appellant tried to intimidate Kostick into silence. Threats made to discourage a witness from testifying are relevant to show a defendant's knowledge of guilt. Ford v. State , 801 So. 2d 318, 320 (Fla. 1st DCA 2001).