CATHLYN PALMER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Cathlyn Palmer appealed his convictions for burglary, armed robbery, and firearm possession. The court affirmed the armed robbery convictions but reversed the burglary conviction due to insufficient evidence (premises were open to the public) and the firearm conviction due to double jeopardy concerns.
The armed robbery convictions are affirmed because the gait demonstration did not violate the defendant's Fifth Amendment rights. The burglary conviction is reversed because the state's evidence established the premises were open to the public, which constitutes a complete defense under § 810.02(1)(b)1. The firearm possession conviction is reversed as it violates double jeopardy given the elements of the armed robbery charges.
[1] A defendant's compelled demonstration of their gait for the jury does not violate the Fifth Amendment privilege against self-incrimination.
[2] A conviction for burglary is improper when the premises were open to the public at the time of entry.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“demonstrations of this nature are not testimonial and do not violate the defendant's Fifth Amendment rights”
Establishes that the gait demonstration requirement did not violate the defendant's constitutional rights
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Join FLexlaw to unlock all legal intelligencePalmer was charged with burglary under Florida Statutes § 810.02(1)(b)1, armed robbery, and possession of a firearm while engaged in a criminal offens…
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Cathlyn Palmer appeals his convictions and sentences for burglary, armed robbery and possession of a firearm while engaged in a criminal offense. We affirm the convictions for armed robbery, and we reverse the convictions for burglary and for possession of a firearm.
The armed robbery convictions are affirmed because we find no error in the trial court’s direction to the defendant to demonstrate his gait for the jury, at the prosecutor’s request. The issue was not properly preserved for appellate review because defense counsel only objected once and on the solitary ground that the demonstration was duplicative. Putting aside the lack of preservation, we find no error in requiring the demonstration. As recognized in Macias v. State, 515 So.2d 206 (Fla.1987), demonstrations of this nature are not testimonial and do not violate the defendant’s Fifth Amendment rights.
The burglary conviction, however, is reversed. The defendant was charged with burglary under section 810.02(l)(b)l., Florida Statutes (2009). That section defines burglary as “[ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public .... ” Id. (emphasis added). Since the state’s evidence established that the premises were open to the public,1 this constitutes a complete defense to the charge of burglary. Miller v. State, 733 So.2d 955, 957 (Fla.1998).
Although this issue also was not preserved for review, a conviction based on insufficient evidence to demonstrate that a crime was committed at all constitutes fundamental error that can be addressed on appeal. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003).
The conviction for possession of a firearm while engaged in the commission of a felony also must be reversed. As the state properly concedes, and in light of the elements of the armed robbery charges, this conviction violates double jeopardy. See Williams v. State, 109 So.3d 831 (Fla. 3d DCA 2013).
We affirm the armed robbery convictions, and we reverse the convictions for burglary and for possession of a firearm during the commission of a felony.
Affirmed in part, reversed in part, and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- F.B. v. State, 852 So. 2d 226 (Fla. 2003)
- Miller v. State, 733 So. 2d 955 (Fla. 1998)
- MacIas v. State, 515 So. 2d 206 (Fla. 1987)
- Williams v. State, 109 So. 3d 831 (Fla. 3d DCA 2013)