Barlow v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RICHARD EUGENE BARLOW, )
)
Appellant, )
)
v. ) Case No. 2D13-6150
)
STATE OF FLORIDA, )
)
Appellee. )
. )
_________________________________ )
Opinion filed July 29, 2015.
Appeal from the Circuit Court for
Hillsborough County; Samantha L.
Ward, Judge.
Howard L. Dimmig, II, Public Defender,
and Richard P. Albertine, Jr., Assistant
Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa,
for Appellee.
NORTHCUTT, Judge.
Richard Barlow was tried in circuit court on one felony charge and two
misdemeanor charges. The jury acquitted him of one misdemeanor but convicted him
on the other two counts. We agree with Barlow's assertion that the circuit court did not
have subject matter jurisdiction over the misdemeanor charges. Therefore we vacate
his conviction for obstructing a law enforcement officer. See White v. State, 568 So. 2d
1318 (Fla. 2d DCA 1990). We affirm on Barlow's other points and will not discuss them
further.
The evidence at Barlow's trial reflected that he engaged in two separate
incidents of alleged criminal activity on the same day. On that morning, sheriff's
deputies happened upon Barlow as he attempted to move a pickup truck off some
railroad tracks. Barlow told the deputies that the truck had been stolen from him and
that he had just discovered it sitting on the tracks. The deputies instructed him to move
the truck off the tracks and to wait for them at the end of the road while they continued
their investigation. Instead, Barlow climbed into the truck and drove away. This
incident was the basis for the two misdemeanor charges, giving a false report to a law
enforcement officer, § 837.05(1), Fla. Stat. (2013), and obstructing a law enforcement
officer without violence, § 843.02, Fla. Stat. (2013).
That afternoon a man telephoned authorities to report someone driving a
truck in circles in a neighbor's pasture. Different sheriff's deputies investigated this
report. When they arrived, they observed that part of the fence enclosing the pasture
had been knocked down. They also found Barlow and his truck, as well as some
grazing bulls, inside the fenced area. The felony charge, breaking or injuring fences
used to contain animals, § 810.115(2), Fla. Stat. (2013), was based on this episode.
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The circuit court's jurisdiction over misdemeanors is limited to those that
"aris[e] out of the same circumstances as a felony which is also charged."
§ 26.012(1)(d), Fla. Stat. (2013); see also art. 5, § 5(b), Fla. Const. We note that some
cases consider the temporal relationship between the felonies and the misdemeanors,
but we do not find that factor, in itself, dispositive. Rather we must examine the
circumstances from which the charges arose. See Ingraham v. State, 122 So. 3d 934(Fla. 2d DCA 2013) (noting that years elapsed between the commission of the felony
and the misdemeanors, but relying on the fact that the defendant's misdemeanors,
including driving under the influence and driving while his license was suspended or
revoked, did not arise out of the same circumstances as his felony charge for making
false statements in obtaining a driver's license); Hicks v. State, 990 So. 2d 684 (Fla. 2d
DCA 2008) (stating that the charge of misdemeanor possession of marijuana, which
was discovered when Hicks was arrested on a felony charge of aggravated assault on a
law enforcement officer, did not arise from the same circumstances as the felony, and
noting that the arrest was made a week after the assault was committed).
Here, although Barlow and his truck were implicated in both incidents
giving rise to the felony charge and the misdemeanor charges, the charges stemmed
from two separate and wholly unrelated sets of circumstances. The circuit court had
jurisdiction over the felony, but it lacked jurisdiction over the misdemeanors. We vacate
Barlow's conviction for obstructing a law enforcement officer without violence.
Affirmed in part; misdemeanor conviction vacated.
CASANUEVA and BLACK, JJ., Concur.
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