BRUMIT v. STATE, 4D06-4999 (Fla.App. 4 Dist. 12-31-2007)
JODY BRUMIT, Petitioner, v. STATE OF FLORIDA, Respondent.
No. 4D06-4999.
District Court of Appeal of Florida, Fourth District.
December 31, 2007.

Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Paul L. Backman and Ana I.
Gardiner, Judges; L.T. Case No. 00-12574 CF10A.

Jason T. Forman of Law Offices of Jason T. Foreman, P.A., Fort
Lauderdale, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M.
Germanowicz, Assistant Attorney General, West Palm Beach, for
respondent.

PER CURIAM.

Jody Brumit (Defendant) appealed an order summarily denying her motion
to vacate sentence, filed pursuant to rule 3.800(a) and/or rule 3.850,
Florida Rules of Criminal Procedure, and the order denying her motion
for rehearing. Her motion actually challenged her conviction, rather
than her sentence. Although she was out of time to appeal her conviction
or to file a timely rule 3.850 motion, her ground was that she should be
treated the same as her similarly situated co-defendant. This court
redesignated the case as a petition for writ of habeas corpus, treated
her initial brief as the petition, and issued an order to show cause. We
now grant the petition.

Defendant was charged, along with co-defendant Ronald Festa (Festa),
with one count of aggravated child abuse in violation of section
827.03(2)(b), alleged to have occurred on June 18, 2000. At their jury
trial, neither side asked to have the jury instructed on any lesser
included offenses, and the jury was instructed to find the defendants
either guilty of aggravated child abuse as charged, or not guilty. Both
were found guilty as charged.

This court reversed Defendant's direct appeal, finding the trial court
erred in denying her motion for judgment of acquittal because there was
insufficient evidence as a matter of law to support her conviction for
aggravated child abuse. It directed the trial court on remand to enter
judgment for child abuse under section 827.03(1). Brumit v. State,
843 So.2d 978 (Fla. 4th DCA 2003). On June 13, 2003, the trial court
vacated the prior judgment and sentence, and resentenced Defendant to
Page 2
four years of probation for the offense of child abuse. No direct appeal
was taken from the new conviction and sentence, and Defendant's probation
was terminated by order dated December 14, 2005.

Festa raised the same issue on direct appeal, as well as whether the
trial court's error — in precluding him from discovering the victim's
medical and mental health records and introducing testimony about the
victim's propensity for violence — prevented him from confronting the
victim and presenting his only defense. This court found Festa's appeal
meritorious on both points. It reversed and remanded for a new trial
because of the discovery error, but it held that he could be retried for
no more than child abuse because, as this court already had found in
Defendant's appeal, the evidence was insufficient for the charge of
aggravated child abuse. Festa v. State, 901 So.2d 1026 (Fla. 4th DCA
2005) (Festa I).

On remand, the state charged Festa with child abuse and he moved to
dismiss, explaining that the permissive lesser offense of child abuse
was not submitted to the jury at his trial, because neither he nor the
state requested instruction on a lesser included offense; he had elected
the "all or nothing" strategy in hopes of an acquittal. In light of the
fact that the jury was not instructed on the lesser included offense of
child abuse, he argued that the state was now precluded from trying him
for that related offense pursuant to Florida Rule of Criminal Procedure
3.151. The trial court denied the motion to dismiss, Festa filed a
petition for writ of prohibition in this court, and this court granted
the petition, holding that, because the jury was not instructed on the
lesser included offense of simple child abuse at the original trial,
retrying him for simple child abuse would violate his right to be
protected from double jeopardy. Festa v. State, 927 So.2d 1049 (Fla. 4th
DCA 2006) (Festa II).

In the opinion granting the petition, this court addressed Defendant's
case in a footnote that reads as follows:

On the co-defendant's appeal, another panel held
that the evidence was not sufficient to support the
charge and reversed. Brumit v. State, 843 So.2d 978
(Fla. 4th DCA 2003). Unlike the present case,
however, that panel directed the trial court to enter
judgment on the lesser included offense of child
abuse, relying on a statute. See § 924.34, Fla. Stat.
(2005) ("When the appellate court determines that the
evidence does not prove the offense for which the
defendant was found guilty but does establish guilt of
a lesser statutory degree of the offense or a lesser
offense necessarily included in the offense charged,
the appellate court
Page 3
shall reverse the judgment and direct the trial court
to enter judgment for the lesser degree of the offense
or for the lesser included offense."). In Sigler v.
State, 881 So.2d 14 (Fla. 4th DCA 2004), we held under
similar circumstances that section 924.34 is no longer
valid when a factual issue critical to the lesser
included offense was not itself submitted to the jury
at trial. Because we have no way of knowing from the
record in this case whether the co-defendant also
waived all instruction on lesser included offenses, we
express no opinion as to whether, because of our
disposition in this case, the outcome in the
co-defendant's case should be changed.

Id. at 1052 n. 5 (emphasis added).

Based on the emphasized language above, Defendant sought collateral
relief in her own case, and this case originated as an appeal from the
trial court's denial of that relief. She argues that the "manifest
injustice" doctrine should overcome the law of the case presented by this
court's prior opinion in her direct appeal, Zolache v. State, 687 So.2d 298
(Fla. 4th DCA 1997); Line v. State, 722 So.2d 853 (Fla. 4th DCA 1998);
Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), aff'd, 967 So.2d 835
(Fla. 2007); Young v. State, 939 So.2d 263 (Fla. 4th DCA 2006), and she
asserts entitlement to the same relief provided to her co-defendant,
Festa, Laster v. State, 739 So.2d 150 (Fla. 1st DCA 1999) (holding that
defendant was entitled to same relief on double jeopardy claim as that
obtained by co-defendant who was jointly tried with defendant, though
before a different jury).

Habeas corpus filed in the appellate court is the proper method for
seeking relief when co-defendants' appeals on the same issue are
resolved differently. See, e.g., Raulerson v. State, 724 So.2d 641 (Fla.
4th DCA 1999); Romero v. State, 637 So.2d 7 (Fla. 4th DCA 1994);
Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), disagreed with on other
grounds by Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), rev.
granted, 956 So.2d 455 (Fla. 2007).

The state concedes that the manifest injustice doctrine may apply to
Defendant, who is similarly situated to Festa; its only argument to the
contrary arises in the event the supreme court were to uphold the
application of section 924.34, Florida Statutes.

Section 924.34 provides as follows:

When the appellate court determines that the evidence
does
Page 4
not prove the offense for which the defendant was
found guilty but does establish guilt of a lesser
statutory degree of the offense or a lesser offense
necessarily included in the offense charged, the
appellate court shall reverse the judgment and direct
the trial court to enter judgment for the lesser
degree of the offense or for the lesser included
offense.

While this case was pending, the supreme court issued an opinion
affirming this court's opinion in Sigler. Sigler arose on direct appeal
from a conviction for a lesser offense, entered in accordance with this
court's mandate from a prior appeal. There, this court considered, as a
matter of grace, defendant's argument that his conviction for
third-degree felony murder as a lesser-included offense of second-degree
murder was illegal, despite the contention that this court's prior
conclusion that the conviction was proper was the law of the case. The
allegation of an illegal conviction was an exceptional circumstance
warranting relaxation of the law of the case doctrine. 881 So.2d at 17.
In State v. Sigler, 967 So.2d 835 (Fla. 2007), the supreme court
affirmed, holding that section 924.34, Florida Statutes, is
unconstitutional to the extent it can be read to allow the appellate
court to direct entry of judgment for a lesser included offense if not
all the elements of the lesser have been found by a jury beyond a
reasonable doubt.

That is the case here. Child abuse[fn1] is a permissive, category 2,
lesser included offense of aggravated child abuse.[fn2] Festa II,
927 So.2d at 1050
Page 5
(citing Fla. Std. Jury Instr. (Crim.) 16.1). By definition, a permissive
lesser included offense contains at least one statutory element that is
not included in the greater offense. Carrin v. State, 875 So.2d 719, 722
(Fla. 1st DCA 2004) (citing Nurse v. State, 658 So.2d 1074, 1077 (Fla.
3d DCA 1995)). The previous jury determination that Defendant was guilty
of aggravated child abuse, i.e., that she "maliciously punished" the
child, cannot be deemed to include a jury finding that she was guilty of
every element of the permissive lesser included offense of child abuse.
State v. Sigler, 967 So.2d at 839 (citing Sigler v. State, 881 So.2d 14,
20 (Fla. 4th DCA 2004) (citing Apprendi v. New Jersey, 530 U.S. 466
(2000) and Blakely v. Washington, 542 U.S. 296 (2004))).

Accordingly, we grant the petition and direct the trial court to
vacate Defendant's conviction.

GUNTHER, POLEN and GROSS, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

[fn1] The jury instruction for child abuse under section 837.03(1),
Florida Statutes (1999), is as follows:

To prove the crime of Child Abuse, the State must
prove the following two elements beyond a reasonable
doubt:

1. (Defendant) Give as applicable

a. intentionally inflicted physical or mental
injury upon (victim)

b. committed an intentional act that could reasonably
be expected to result in physical or mental injury to
(victim)

c. actively encouraged another person to commit
an act that resulted in or could reasonably have
been expected to result in physical or mental
injury to (victim).

2. (Victim) was under the age of 18 years.

Fla. Std. Jury Instr. (Crim.) 16.3.

[fn2] The jury instruction for aggravated child abuse under section
827.03(2), Florida Statutes (1999), is as follows:

To prove the crime of aggravated child abuse, the
State must prove the following two elements beyond a
reasonable doubt:

1. (Defendant) Give as applicable

a. committed aggravated battery upon (victim)

b. willfully tortured (victim)

c. maliciously punished (victim)

d. willfully and unlawfully caged (victim)

e. knowingly or willfully committed child abuse upon
(victim) and in so doing caused great bodily harm,
permanent disability, or permanent disfigurement.

2. (Victim) was under the age of 18 years.

Fla. Std. Jury Instr. (Crim.) 16.1.

In the instant case, the jury was asked to find Defendant (and Festa)
guilty of aggravated child abuse only if it found they maliciously
punished the child.