Ryan Austin Calhoun v. State of Florida , 259 So. 3d 288 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D16-4812
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RYAN AUSTIN CALHOUN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.
November 20, 2018
ROBERTS, J.
The appellant, Ryan Austin Calhoun, was one of two men
charged and convicted of sexual battery by multiple perpetrators. ∗
The appellant makes two arguments on appeal. First, the
appellant argues that the trial court erred in failing to give the jury
instruction for the offense of unnatural and lascivious act, which
he characterizes as a permissive lesser-included offense of sexual
battery by multiple perpetrators. We find that the appellant failed
to properly preserve this argument. Second, the appellant argues
that the trial court erred when it imposed a fine and surcharge
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The appellant and his co-defendant were tried together.
without specifically announcing the fine. We agree and are
compelled to strike the fine and surcharge.
Preservation
With regards to the appellant’s first issue, we find it
unpreserved because the ground trial counsel argued at trial was
different from the ground he argued in the motion for rehearing.
In order to explain how the grounds are different, we first review
what this Court has said about lesser-included offenses.
In Wright v. State, we explained,
Lesser included offenses fall into two categories:
necessary and permissive. Necessarily lesser included
offenses are those offenses in which the statutory
elements of the lesser included offense are always
subsumed within those of the charged offense.
Necessarily lesser included offenses are designated
Category 1 offenses, whereas permissive lesser included
offenses are designated Category 2 offenses. A permissive
lesser included offense differs in that it cannot be
determined to fall within Category 2 unless both the
statutory elements and the facts alleged in the accusatory
pleading are consulted.
983 So. 2d 6, 9 (Fla. 1st DCA 2007) (internal citations omitted).
Given this background information on lesser-included
offenses, we next examine trial counsel’s arguments to the trial
court. During a break in the trial, the parties began to discuss jury
instructions. Trial counsel stated that the defense may request a
jury instruction for the offense of unnatural and lascivious act, but
informed the trial court that the offense of unnatural and
lascivious act was not a Category 1 or a Category 2 offense. Then,
trial counsel explained that the commentary to the jury instruction
stated that some sex offenses may be supported by the evidence
produced at trial, reaffirmed that an unnatural and lascivious act
was not a Category 1 or a Category 2 offense, and requested to wait
to further discuss the issue until all the evidence was presented.
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Later, during the charge conference, counsel for the co-
defendant asked the trial court to instruct the jury on all of the
lesser-included offenses in addition to the instruction for the
offense of unnatural and lascivious act. When the trial court asked
for the State’s position, the State objected and argued that the
requested jury instruction was not for a Category 2 offense. When
the trial court asked the appellant’s trial counsel if the defense had
any issues with the jury instructions, trial counsel simply
requested the instruction for unnatural and lascivious act without
elaboration. The trial court denied the request. Ten days later, the
appellant filed a motion for new trial and argued that the trial
court erred when it denied his request to instruct the jury on
unnatural and lascivious act because unnatural and lascivious act
was a permissive lesser-included offense of sexual battery by
multiple perpetrators.
Based on trial counsel’s statements to the trial court, we find
that the appellant never requested the unnatural and lascivious
offense instruction based on the ground that an unnatural and
lascivious offense was a permissive lesser-included offense until he
filed his motion for new trial. Because the ground stated in the
motion for new trial was different from the ground stated to the
trial court, the issue is not preserved for appeal. See Barton v.
State, 704 So. 2d 569, 572 (Fla. 1st DCA 1997) (finding that a
defendant waived his argument on the grounds made in a motion
for new trial when those grounds were not argued at trial).
Accordingly, the appellant’s judgment and prison sentence are
affirmed.
Fine and Surcharge
With regards to the appellant’s second issue on appeal, the
State properly concedes error. Discretionary fines must be orally
pronounced at sentencing. Lamoreaux v. State, 88 So. 3d 379, 381
(Fla. 1st DCA 2012). When the trial court imposes a fine without
specifically pronouncing it, the fine and any surcharge on that fine
must be struck. Id.
During the appellant’s sentencing, the trial court announced
a lump-sum total of all the court costs and fines it was imposing.
Included in the lump-sum total was a $700.00 fine pursuant to
section 775.083, Florida Statutes (2015). Section 775.083 lists all
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of the fines a trial court may impose, but those fines are not
mandatory. In addition to the $700.00 discretionary fine, the trial
court also imposed a surcharge on that fine. Because the trial court
imposed a discretionary fine without specifically pronouncing it,
we are compelled to strike it and the surcharge. Therefore, we
order the $700.00 fine and $35.00 surcharge imposed in this case
be struck.
AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.
RAY and KELSEY, 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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Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Appellee.
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