Third District Court of Appeal
State of Florida
Opinion filed July 13, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-2322
Lower Tribunal No. F06-37622E
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Jose Estache,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.
Jeffrey H. Fink, for appellant.
Ashley Moody, Attorney General, and Christina L. Dominguez and Ivy
R. Ginsberg, Assistant Attorneys General, for appellee.
Before LOGUE, SCALES, and LINDSEY, JJ.
LINDSEY, J.
Appellant Jose Estache (Defendant below) appeals a final judgment of
conviction and sentence. For the reasons set forth below, we reverse and
remand for the trial court to vacate the convictions for attempted home
invasion robbery (count 12) and unlawful possession of a firearm (count 15).
We affirm all other issues on appeal.
I. BACKGROUND
On October 14, 2006, Ann Maynard was preparing to host a children’s
birthday party for her cousin Carla Queely’s son and her friend Sophia
Alexis’s son. According to Ms. Maynard’s testimony, two unknown men
came to her front door. She testified that both men were black and described
one as “a tall, light-skinned man” and the other as “shorter and darker.” The
taller man, who was holding a pistol, ordered Ms. Maynard, Ms. Queely, and
Ms. Queely’s son to get down on the ground. The taller man repeatedly
asked if there was a safe in the house. Ms. Maynard answered that there
was no safe. The taller man then put a silencer on his pistol and told the
victims to stop crying and to be quiet because he would have no problem
killing them. Once the victims were on the ground, the taller man handed
the shorter man plastic zip ties to put on the victims’ hands.
At this point, Ms. Maynard heard her sister and her sister’s two children
at the front door. Ms. Maynard pushed the taller man aside as he was
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opening the door and yelled to her sister and the two children to run. The
taller man shot Ms. Maynard in the face and in her hands. He also shot Ms.
Maynard’s sister and the two children. All four survived. Moments later, after
the two men fled, Ms. Queely and her son, who had remained in the house,
were found dead. They had been shot by the shorter man.
Ms. Maynard testified that she got a good look at the taller man. She
identified him from a photographic lineup and stated she was “very certain”
because “that’s the face I will never forget in my life.” While on the stand,
Ms. Maynard identified Jose Estache as the taller man, the same man she
had identified from the photographic lineup.
In October 2006, Estache, who was living in Broward County, was
wearing a GPS ankle bracelet as a condition of pretrial release in an
unrelated criminal case. His ankle bracelet automatically recorded GPS
location data every minute and reported the GPS data points to a database
every hour. On October 14, 2006, at the time the crimes were committed,
the GPS data showed locations at or near Ms. Maynard’s home. 1
Based on Ms. Maynard’s photographic lineup identifications, an arrest
warrant was issued for Estache. Police applied for and received a court
1
The State’s expert testified that in 2006, 90% of all GPS data points
collected by the ankle monitor were accurate to within 30 feet.
3
order for a pen register and a trap and trace on Estache’s cell phone. 2 Police
eventually located Estache and arrested him. At the police station, Detective
Raymond Hoadley conducted an unrecorded interview. 3 Detective Hoadley
testified that he advised Estache of his Miranda rights using a pre-printed
form.
To make sure Estache understood his Miranda rights, Detective
Hoadley asked Estache about his level of education and his ability to
understand English. Estache answered that he was a high school graduate
and had the equivalent of some college education in Jamaica, where he was
2
A pen register “records or decodes dialing, routing, addressing, or signaling
information . . . but such information does not include the contents of any
communication.” § 934.02(20), Fla. Stat. (2021). A trap and trace “captures
the incoming electronic or other impulses that identify the originating number
or other dialing, routing, addressing, or signaling information reasonably
likely to identify the source of a wire or electronic communication, but such
information does not include the contents of any communication.” §
934.02(21), Fla. Stat. (2021).
3
Before Estache was taken to the police station for questioning, he made
incriminating statements to the arresting detective. Estache argues the trial
court erred when it did not suppress these statements because he was
arrested as a result of illegal cell phone tracking that went beyond the scope
of the pen register and trap and trace order. To the extent this is true, any
error was harmless because police had probable cause to arrest Estache,
and he made similar incriminating statements at the police station once he
had been given a Miranda warning. Cf. New York v. Harris,
495 U.S. 14, 14
(1990) (“Where the police have probable cause to arrest a suspect, the
exclusionary rule does not bar the State’s use of a statement made by the
defendant outside of his home . . . .”).
4
raised. Estache also told Detective Hoadley that English was his primary
language. When asked about his mental state, Estache answered that he
was possibly schizophrenic. During questioning, Detective Hoadley did not
notice anything delusional in any of Estache’s statements. “He would
answer questions that he wanted to answer and not answer questions he
didn’t want to.” Detective Hoadley further testified that Estache “appeared
normal in all matter. He was -- he was consistently talking to me. He
engaged me. He would ask me some questions. . . . There was no indication
that he had anything less than a normal ability.”
After Detective Hoadley informed Estache of his Miranda rights and
Estache signed the pre-printed Miranda form, Estache agreed to answer
some questions. 4 Detective Hoaldey testified, in relevant part, as follows:
[STATE:] Did he say anything about who was the
leader of the group of people who went into the
house?
....
4
Estache argues the incriminating statements he made to Detective Hoadley
should have been suppressed because his mental illness prevented him
from knowingly and intelligently waiving his Miranda rights. Based on the
record before us, we cannot conclude that the trial court’s failure to suppress
these incriminating statements was clearly erroneous. See Wright v. State,
300 So. 3d 296, 300 (Fla. 3d DCA 2020), reh’g denied,
302 So. 3d 383 (Fla.
3d DCA 2020), review denied, SC20-386,
2020 WL 2316638 (Fla. May 11,
2020) (“[A] trial court’s ruling on the voluntariness of a confession will not be
overturned unless clearly erroneous.”).
5
[DETECTIVE HOALDEY:] He stated he could
understand why the surviving victims would have
considered him the leader; however, that [a co-
defendant] had also spoken to the victims inside the
house as well.
....
Q. Did you ask him about or did you discuss with him
the fact that there was a police officer in the area –[5]
A. Yes.
Q. -- at the time of the incident? What was the
discussion with him about police being in the area?
A. Initially, he said he thought that was why the
shooting had started, that when the officer arrived on
the scene.
Q. Did you talk to him about shooting the police
officer?
....
A. I asked him, Did you run out of bullets when you
were shooting the people in the front yard?
And he said, No. He said, shooting at a police officer
isn’t like shooting at dopers or their children.
He said he had plenty of bullets and an extra gun if
he needed it.
5
Shortly before the crimes occurred, Officer Carson was returning home
after work. He noticed two unknown men walking towards Ms. Maynard’s
house. He circled around and remained in the area. He heard the gunshots,
and due to his proximity, he was able to arrive at the scene within moments.
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On October 4, 2018, the jury found Estache guilty of first-degree
murder (Counts 1–2), attempted first-degree murder with a firearm (Counts
3–6), attempted first-degree felony murder while using a firearm (Counts 7–
10), burglary with assault (Count 11), home invasion robbery (Count 12),
attempted armed robbery (Count 13), and unlawful possession of a firearm
while engaged in a criminal offense (Count 14). The jury found that Estache
discharged a firearm causing great bodily harm for counts 11 through 13.
Counts 3–6 were later vacated by the trial court.
Estache timely appealed.
II. ANALYSIS
Estache raises numerous issues on appeal, many of which challenge
the trial court’s discretion with respect to various evidentiary issues. We
write solely to address Estache’s argument that the judgment violated double
jeopardy. We affirm the remaining issues on appeal.
Given the record before us and the evidence at trial, which included
Ms. Maynard’s identification of Estache, the GPS data placing Estache at
the crime scene during the time the crimes were committed, and Estache’s
incriminating statements to Detective Hoadley, to the extent the trial court
erred, any error would be harmless. See Wright v. State,
317 So. 3d 237,
241 (Fla. 3d DCA 2021), review denied, SC21-1076,
2021 WL 5275705 (Fla.
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Nov. 12, 2021) (“[T]o the extent evidence of the collateral crimes was not
admissible, we agree with the State that any error would be harmless in light
of [Defendant’s] confession because, based on the record before us, there
is no reasonable possibility that the error contributed to the conviction.”).
Estache raises three double jeopardy challenges. Double jeopardy
claims present pure questions of law and are therefore reviewed de novo.
McKinney v. State,
66 So. 3d 852, 853 (Fla. 2011). “[S]eparate convictions
for different offenses arising from a single act are only permissible where
each separate offense contains an element that the other lacks.” Olivard v.
State,
831 So. 2d 823, 824 (Fla. 4th DCA 2002). When separate convictions
violate double jeopardy, the remedy is to vacate the conviction for the lesser
offense and affirm the conviction for the greater one.
Id. Estache challenges
the following three convictions as violations of double jeopardy.
1. Burglary with Assault (Count 11) and Attempted Home Invasion
Robbery (Count 12)
Estache argues his conviction for both burglary with assault and
attempted home invasion robbery violates double jeopardy. We agree. “The
crime of burglary of a dwelling with an assault or battery is subsumed by the
offense of home invasion robbery.” Mendez v. State,
798 So. 2d 749, 750
(Fla. 5th DCA 2001); see also Braggs v. State,
789 So. 2d 1151, 1153 (Fla.
3d DCA 2001) (“As the state correctly concedes, the conviction for . . . home
8
invasion robbery, ‘should be vacated as it is subsumed by the greater offense
of burglary with an assault.’” (quoting Smith v. State,
741 So. 2d 579, 579
(Fla. 3d DCA 1999))). We therefore remand for the trial court to vacate the
conviction for the lesser offense of attempted home invasion robbery. We
affirm the conviction for burglary with assault.
2. Attempted Home Invasion Robbery (Count 12) and Attempted
Armed Robbery (Count 13)
Estache argues that his conviction for attempted armed robbery must
be vacated because it is completely subsumed within the crime of attempted
home invasion robbery. As set forth above, the lesser offense of attempted
home invasion robbery should be vacated. Consequently, this argument is
moot.
3. Unlawful Possession of a Firearm (Count 15)
Because Counts 7-13 were enhanced upon the jury’s finding that
Estache used or carried a firearm, Estache argues that his conviction
for unlawful possession of a firearm (Count 15) violates double
jeopardy. See Mendoza v. State,
941 So. 2d 523, 525 (Fla. 3d DCA 2006)
(“[W]hen a defendant is convicted of a felony in which the conviction is
enhanced due to use of a firearm, the double jeopardy clause bars both a
conviction and sentence for the crime of possession of a firearm during the
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commission of a felony.”). The State agrees. We therefore remand for the
trial court to vacate the conviction for unlawful possession of a firearm.
III. CONCLUSION
We reverse and remand for the trial court to vacate the convictions for
attempted home invasion robbery (count 12) and unlawful possession of a
firearm (count 15). We affirm all other issues on appeal.
Affirmed, in part, and reversed and remanded, in part.
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