ELIO GONZALEZ

v.

THE STATE OF FLORIDA

on the court having MMANDED that such fu with the opinion of this CO to this Court opinion;

RIDA

by appeal, and after due considerati

YOU ARE HEREBY CO

rther proceedings be had in said cause in accordance URT attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the STATE OF FLORIDA. Lower Tribunal Case Number(s): M13-42094 WITNESS the Honorable Abby Cynamon, Administrative Judge oftheAppellate Division ofthe Circuit Court ofthe Eleventh Judicial Circuit of Florida and the seal ofthe said Circuit C0 June, 12, 2015. l0/22/2008 urt at Miam Q,“ i, this 1231 d l>⁴? H 1 J, /I: ' "x. ifyaflmv “ ~"-;:?*Tw@J»,.¢»—*’7,",’*‘,1’,tt° " *1‘ ‘:3’ ' , M: ,3 1'5; ‘Ly ~ \ ';\";r-.7», By: 5_,\la \_, .1- A ,t\t~» » Jac , ‘s Dep ' I=G‘1e:k'.=;%-"I ar T Q3333 (W '3‘: V. ‘. <i ay of ‘SW1 Rfli‘ Z\ W⁴ an in 1%‘? ;;. -W". p. ‘K $- —r~~ mot! a r ,. ~ =8 s%‘i**°‘“ [*2] ‘I

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING MOTION

IN THE cmcurr COURT or THE AND, IF FILED, DISPOSED or. APPELLATE DIVISION

CASE NO. 14-078 AC

ELIO GALVEZ GONZALEZ, $2 7'.“ Appellant, I NH

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"5'fl I’) ;=;: 3'1“,

VS.

n'=“~: l"=E°l~l 1-i‘-E31? STATE or FLORIDA, A L² SI-Id Appellee. ‘W I f / Opinion Filed: ')_"\k '3_Q\ 5/ An Appeal from the County Court for Miami-Dade County, Florida, Del Pino, J. Jonathan Greenber E g, sq., Assistant Public Defender, Carlos J. Martinez, Public Defender, for Appellant. AdamC Finkel Esq Assi . , . stant State Attorney, Katherine Fernandez Rundle, State Attorney, for Appellee. Before WARD, HIRSCH, and MILL-_A_N, JJ, (MILLAN, J.) This is an appeal from a county court jury trial that commenced Appellant Elio Galvez Gonzalez guilty of four out of five counts of the offenses ofmisdemeanor battery, misdemeanor criminal mischief, violation of a domestic violence injunction, and January 14, 2014, finding violation of pretrial release condition/domestic violence, with a sentence of 364 days in jail on each count rumiing consecutively. The first issue on appeal is whether the Appellant was prejudiced by the bifurcation of count four (violation of pretrial release condition (domestic

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA

"Ti F: TT1 ‘Z³ “TI C³ , 1,, £73 %f'_§P $1"?- aasava-navnfiflilml [*3] Q ‘ ‘ violence))l as an amendment to the information in a pretrial hearing, the day before trial, after the expiration of the speedy nial period. A trial c-onrt’s ruling on a motion to amend the information is reviewed for abuse of discretion. Wright v. State, 41 So. 3d 924, 926 (Fla. 1st DCA 2010). After the expiration of the speedy trial period, it is well established that the State maintains the right to amend an information substantively pre-trial or during trial even over the objection of the defendant unless there is a showing of prejudice to the substantive rights of the defendant. State v. Anderson, 537 So. 2d 1373, 1375 (Fla. 1989); State v. Clifton, 905 So. 2d 172, 178 (Fla. 5th DCA 2005). “There is a significant difference between amending charged offense and the filing of a new and entirely different offense.” Green v. State, 728 So. 2d 779, 781 (Fla. 4th DCA 1999). It is the changing or adding of an offense in an information that is a substantive change that evokes prejudice. Wright, 41 So. 3d at 926. It is true that the prohibition exists against substantively amending an information after the speedy trial period has expired extends to the bifurcation of counts. State v. Conroy, 118 So. 3d 305, 305-ll (Fla. 3d DCA 2013) (during tn'al);² Clifton, 905 So. 2d at 178-79. The remedy is clear: reinstatement of the previous information. Conroy, 118 So. 3d at 311-12; Clifton, 905 So. 2d at 178-79. Appellant never requested a continuance or sought a dismissal during the pre-trial hearing due to the ‘ Originally, cotmt four of the information averred that Appellant violated his conditions of pretrial release when the original arrest was for domestic violence, alleging aggravated battery and/or harassing phone calls. Count four was bifurcated in the amended information into two separate counts to count four for pre-trial release when the original arrest was for domestic violence for aggravated battery, and count five pre-trial release for harassing phone calls.² Conroy holds that a bifurcation of a count after the speedy trial period has expired to allege a new substantive charge is impermissibly prejudicial to the defense. When a new charge is added after the speedy trial period ends, the substantive prejudice to the defendant is obvious; the increased exposure to incarceration and the violation of the defendant’s speedy trial rights. Conroy, 118 So. 3d at 311. [*4] amendment of the information the day before trial. As to the first ground under Clifion, Appellee, State of Florida, concedes that there was no abandomnent or cessation of prosecution. As to the second ground under Clifton, Appellant argues that the resulting prejudice was obvious, as new count five was a substantive charge that extended Appellant’s sentence to an extra year of time. Appellee argued that no different type of charge was being added to the information and no additional evidence was being elicited. We find on this record that the objection which was not specific by Appellant was waived during the pre-trial hearing and that no contemporaneous objection existed as to the second ground. Appellant failed to argue and demonstrate that he was prejudiced by the Appellee’s amendment ofthe infonnation as to the bifurcation of count four. Any right owned by a defendant to make an objection will be deemed waived where he failed to include an objection in pre-trial and waited until after judgment. Johnson v. State, 190 So. 2d 811, 812 (Fla. 4th DCA 1966). At the pre-trial hearing, Appellee with leave of court, ore tenus, moved to amend the information with four amendments to the pre-trial release count. Appellant objected at the pre-trial hearing to amending the infonnation with four amendments to count four after an inquiry by the trial court.³ The remaining amendment of the infonnation under review here bifurcated cotmt four.³ Court: “Well, let’s find out ifthe Defense is objecting to the amendment ofthe information.” Defense Counsel: “Yes, Your Honor, I am.” [*5] At the time of the ore tenus motion to amend to bifiircate, no argument was asserted by the _A_l"\1'\(31l3__I1t that nnntaipnrl anv flour nr n flan nrininal

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... --...... .-.. ...., ..-.. ... .. .... ....g...... (2.. iiE5‘. (7E5‘ <53(D '1- -3“§= =2‘-I-ta *5’is(2.. information. The trial court noted that the amendment was over the Appellant’s objection. However, the information was amended pre-trial after the trial court made an inquiry as to whether Appellant was prejudiced, and the record is clear that Appellant waived his objection when defense counsel stated below that no prejudice existed as to bifurcating count four to allow this amendment to the information; and he proceeded to allow an arraigmnent on counts four and five, entering a plea ofnot guilty during the pre-trial hearing. See Johnson, 190 So. 2d at 812. Appellant never argued as to the subject arnendment (unlike as to the other three amendments) that he was not afforded an opportunity to investigate the evidence and to prepare a defense (unlike in Conroy). Instead, Appellant’s defense counsel stated below “[a]s far as splitting Count⁴ and Count 5 we have no argument to that.” Particularly, as to count five, Appellant’s defense counsel stated “. . . Count 5, I have no problem. You know, there’s no prejudice there.”⁴ State, 632 So. 2d 245, 246 (Fla. 3d DCA 1994) (no prejudice to the substantial right of defendant was shown below). The defense in Young, like Appellant in this case, had all the evidence and information it needed to prepare for this amendment. The grounds for any objection to an amendment of the information were not specified until an additional objections for the first time as to the bifurcation of count four along with a “ Additionally, during the bond issue in the pre-trial hearing, defense counsel of Appellant requested ROR instead of bond on count five and noted that there was nothing new that was added except that it was bifurcated. 5 The specific ground in the additional objection was that the bifurcated amendment to the information was a substantive charge after expiration of the speedy trial period. [*6] request to strike was made. We find that Appellee correctly argues that the additional objection was not contemporaneous, as it r. ng during the trial -=1 O En E5‘Din.cu ‘Ft: <3cu EB‘*<:(40 SDZIP53 E?‘(D “C3E3 ‘5’.E2. *rinD3. after both parties rested and a motion forjudgment ofacquittal and a renewed motion for mistrial were resolved, but before closing arguments. The time to have made this specific objection to preserve it was during pre-trial after the ore tenus motion to amend the information. A matter in which no contemporaneous objection is made, with the exception of fundamental error, is not preserved for appellate review. Kilgore v State, 688 So. 2d 895, 898 (Fla. 1996); Gonzalez v. State, So. 3d 1171, 1175 (Fla. 3d DCA 2014) (objection must be specific and 052F-riiis E:(Dg2oiE5’“ii'63Z3(D PF E³’v-1 SD*c:1:SE.*5‘it FE‘"4ii 0‘B1:$1 ‘E:E:Q1.-: ‘A<:(D 5? Acco. .d that the arnendrnent to the information of bifurcating count four was proper below under the aforementioned circumstances and no fundamental error existed, as Appellant never articulated any prejudice with this additional objection. The second issue on appeal is whether the trial court erred by allowing testimony concerning collateral crimes into evidence dining trial. The admissibility of collateral crime evidence is within the discretion of the trial court, and the trial court’s ruling shall not be disturbed upon review absent an abuse of that discretion. Ballard v. State, 66 So. 3d 912, 917 (Fla. 2011). Appellee first offered during trial and the pre-trial hearing testimonial evidence of a statement referring to imprisomnent made by Appellant to the victim, that if she did not want to date him he did not care if he went back to prison; he would stab her. During the pre-trial hearing, the trial court admitted Appellant’s statement. Secondly, during trial, testimony was briefly elicited from the victim regarding Appellant’s stealing some of her belongings from her apartment during direct and cross-examination. During the pre-trial hearing, the trial court reserved ruling on discussing the alleged theft. [*7] As to the admissibility ofthe evidence ofAppellant's statement we find that there was no abuse ofdiscretion by the trial court in performing the balancing test under section 90.403, and 90.404 Florida Statutes. McLean v. State, 934 So. 2d 1248, 1261 (Fla. 2006). This testimony was relevant and admissible to show the Appellant's state ofmind aswell asmotive for the crimes. We find thatthe statementby the Appellant was abrief, isolated comment, and thejury leamed nothing new, as the charge ofpretrial release conditions with stipulations infomred the jrythat Appellant had been imprisoned previously and the comment was not afeature ofthetrial or used in closing arguments. Ferrell v. State, 653 So. 2d 367, 368 (Fla. 1995). There was more than circumstantial evidence of guilt in this case and the evidence was sufficient to sustain Appellant's conviction ofthe crimes. A guilty verdict could have been reached by thejury without the reference to Appellant's incarceration. The reference in no way went to the foundation ofthe case or to the merits ofthe cause ofaction nor was a focal point ofthe trial. Therefore, we find no fundamental error existed as to the second issue on appeal. We also find that the testimony ofan alleged theft was innocuously elicited in that the victim blurted out the alleged theft ofher belongings. The testimony ofan alleged theft was minorand inconsequential inlightofalloftheevidence. ltwasnotamainfeatureofthetrial and Appellee proved beyond areasonable doubt that the verdict was not affected. Williams v. State, 692 So. 2d 1014, 1015 (Fla. 4thDCA 1997). Accordingly, wefindthattrial courtdid not abuse its discretion in admitting the statement by the Appellant and the alleged theft in this case,

AFFIRMED.

(WARD and HIRSCH, II. concur). j i _ . ard

COPIES FURNISHED TO COUNSEL

<1

OF RECORD AND TOANY PARTY

NOT REPRESENTED BY COUNSEL.

Milton Hirsch Stephe T. Millan \5