Jermain Tavias Carter v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JERMAIN TAVIAS CARTER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D12-4029
[April 29, 2015]
ON MOTION FOR REHEARING AND CLARIFICATION
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; George Shahood, Senior Judge, and William L. Roby,
Judge; L.T. Case No. 432010CF001415AXMX.
Carey Haughwout, Public Defender, and John M. Conway, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
We deny appellant’s motion for rehearing and clarification, withdraw
our previously issued opinion, and substitute the following in its place.
The appellant challenges his convictions and sentences for nine counts
of sale or delivery of cocaine, arguing that the court should have granted
his motion to sever the counts. We agree and reverse and remand for
further proceedings.
On appeal, the state argues that there was a sufficient connection
between the offenses because all of the transactions involved the same
buyer, who purchased cocaine from the appellant almost every day over a
period of ten days. Additionally, the state argues joinder was proper
because the appellant confessed to the sales in one recorded statement.
We find no significant difference between this case and Dupree v. State,
705 So. 2d 90 (Fla. 4th DCA 1998). Dupree also involved a series of drug
sales occurring “during the course of an ‘ongoing investigation,’ within a
limited period of time, and in a limited geographical area.” Id. at 97. We
held, absent any other connection, joinder was error under such
circumstances. Id. We also reject the state’s argument that joinder was
proper where the sales were to the same buyer.
Turning to the issue of whether the error was harmless, the state
contends that the evidence of the other counts would have been admissible
in a trial as to each count. We disagree. On this record, the evidence as
to each count did not constitute Williams1 rule evidence, nor was it
relevant as inextricably intertwined evidence.
Reversed and remanded for new trial.
WARNER and GROSS, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 Williams v. State, 110 So. 2d 654 (Fla. 1959).
2