Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-5087 _____________________________ ISAAC JACKSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Robert R. Wheeler, Judge. May 13, 2020 PER CURIAM. In this appeal from his conviction and sentence for robbery with a weapon, Appellant claims that the trial court erred in denying his motion for judgment of acquittal. Alternatively, he claims that the trial court erred in accepting defense counsel’s waiver of his presence at a hearing where the court individually pronounced a discretionary fine and surcharge. For the reasons that follow, we affirm. I. During its case-in-chief, the State presented the following evidence. On the morning of January 23, 2016, Jason Mock, an employee of Lake Talquin Liquors off Blountstown Highway, saw a man walking outside the store in a pair of red athletic pants. Footage from the liquor store’s surveillance cameras showed the man walking outside the store, wearing red pants, a black jacket, and a red stocking cap. After walking off camera for a few seconds, the man returned and ran into the store with the red stocking cap pulled down over his face. Inside the store, surveillance footage showed the robber confronting Mock and another employee, Caleb Spires, in the office. The robber ordered Mock to get up and open the safe. Mock thought it was odd that the robber would know that the store had a safe. The store had a lockbox inside the wall, but only the manager had access to it. When Mock told the robber that there was no safe, the robber ordered him to go and open the cash register. Surveillance footage showed the robber forcing Mock to open the cash register, grabbing cash from the register, and fleeing out the front door. Justin Wilmont, a K-9 deputy with the Leon County Sheriff’s Office, responded to Lake Talquin Liquors within a few minutes of receiving the robbery call. While at the scene, Wilmont’s K-9 partner “Cam” picked up a scent in the direction that the robber had fled. Wilmont and Cam tracked the scent for a half mile to the backyard of 7262 Corral Court. Sergeant Brendan Brunner of the Leon County Sheriff’s Office reviewed footage from surveillance cameras at the home of Jacqueline Ford, who lived next door to 7262 Corral Court. The footage showed Appellant—positively identified by Ford—leaving the residence at 7262 Corral Court on the morning of the robbery and running back to the residence approximately seventeen minutes later. When he left the residence, Appellant wore very distinctive baggy red pants with black stripes running down the legs and a white marking near the right pocket, and carried what appeared to be a black jacket. When Appellant ran back into the residence through the back door, he was wearing the black jacket. The footage also showed Deputy Wilmont and his K-9 appearing in the same area approximately forty-four minutes after Appellant ran back into the residence. Based on this footage, Sergeant Brunner went to 7262 Corral Court to execute a warrant for Appellant’s arrest. After being told 2 that Appellant was not there, Brunner conducted a search of the home and found Appellant hiding in his brother’s bedroom closet. Appellant’s brother had previously worked at Lake Talquin Liquors. After the State rested, defense counsel orally moved for a judgment of acquittal on the ground that there was insufficient evidence that Appellant was the robber. The trial court denied the motion. Ultimately, the jury returned a verdict finding Appellant guilty as charged with a specific finding that Appellant carried a weapon in the course of committing the offense. At sentencing, the trial court adjudicated Appellant guilty and sentenced him—as a habitual violent felony offender and prison releasee reoffender—to thirty years in prison with a fifteen-year mandatory minimum. The court also orally announced costs and fines in the lump sum of $2,625. The written sentencing order indicated that this figure included a discretionary fine of $2,100 and an associated surcharge of $105. After filing a timely notice of appeal, Appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), challenging the imposition of the discretionary fines without a specific oral pronouncement. The trial court held a hearing at which defense counsel waived Appellant’s presence before the trial court pronounced the discretionary fine. Appellant then filed a second rule 3.800(b)(2) motion that challenged the waiver of Appellant’s presence because defense counsel could not waive Appellant’s appearance at a critical stage without Appellant’s permission. The trial court denied this motion. II. In Pagan v. State, 830 So. 2d 792 (Fla. 2002), the Florida Supreme Court explained the standard of review for rulings on motions for judgment of acquittal as follows: In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the 3 evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. Id. at 803 (citations omitted). Later, in Knight v. State, 186 So. 3d 1005 (Fla. 2016), the court clarified that the special standard of review applies “only where all of the evidence of a defendant’s guilt . . . is circumstantial, not where any particular element of a crime is demonstrated exclusively by circumstantial evidence.” Id. at 1010. In this case, Appellant claims that the trial court erred in denying his motion for judgment of acquittal because the State’s circumstantial evidence was insufficient. However, Appellant never argued below that the special standard for circumstantial evidence applied because the State’s evidence was wholly circumstantial. Therefore, that portion of Appellant’s argument on appeal is not preserved. See Allen v. State, 45 Fla. L. Weekly D39, D41 (Fla. 1st DCA Jan. 2, 2020) (holding that defendant’s argument was not preserved for appeal because, in moving for a judgment of acquittal, defendant did not argue that it was a wholly circumstantial evidence case, did not outline a theory of defense, and did not explain why it was not inconsistent with the circumstantial evidence). Here, the liquor store’s surveillance camera showed the robber walking outside the store, wearing a black jacket and red pants, but also wearing a red stocking cap. After walking off camera for a few seconds, the robber returned and ran into the store with the red stocking cap pulled down over his face. Inside the store, surveillance cameras showed the robber entering the office, forcing the employees to open the cash register, grabbing cash from the register, and fleeing out the front door. Again, the robber was shown wearing very distinctive baggy red pants with black stripes running down the legs and a white marking near the right pocket. 4 Even if the State’s evidence was entirely circumstantial, it was sufficient to establish Appellant’s identity as the robber. “[C]ircumstantial evidence ‘must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged.’” Scott v. State, 581 So. 2d 887, 893 (Fla. 1991) (quoting Hall v. State, 107 So. 246, 247 (Fla. 1925)); accord Ford v. State, 267 So. 3d 1070, 1074 (Fla. 1st DCA 2019). The State presented evidence that (1) Appellant and the robber wore the same distinctive baggy red pants with black stripes running down the legs and a white marking near the right pocket; (2) Appellant closely resembled the robber in terms of face, height, build, and gait; (3) the residence at 7262 Corral Court was a short distance from the liquor store; (4) Appellant left the residence at 7262 Corral Court on the morning of the robbery and ran back to the residence approximately seventeen minutes later; (5) Deputy Wilmont’s K-9 tracked the robber’s path of flight to the residence at 7262 Corral Court about forty-four minutes after Appellant had run back into the residence; (6) law enforcement was initially refused consent to search a bedroom in the residence; (7) Appellant was found hiding in the bedroom closet when a warrant was executed for his arrest; and (8) Appellant’s brother had previously worked at the liquor store and knew that cash was kept in the store’s lockbox. This evidence was of a conclusive nature and tendency, leading to a reasonable and moral certainty that Appellant and no one else committed the robbery. See Scott, 581 So. 2d at 893. Contrary to Appellant’s assertion, the State’s evidence consisted of more than a series of coincidences and speculations that would have resulted in the conviction of any random man on Corral Court who wore red pants on the morning of the robbery. Therefore, the trial court properly denied the motion for judgment of acquittal. See Edwards v. State, 390 So. 2d 1239, 1240 (Fla. 1st DCA 1980) (holding that circumstantial evidence of a bloodhound’s tracking of defendant, in conjunction with defendant’s clothing, his being barefoot, and his possession of gloves and a flash light, was sufficient to withstand a motion for judgment of acquittal in a prosecution for robbery with a firearm, burglary of a dwelling, and two counts of sexual battery). 5 III. Florida Rule of Criminal Procedure 3.180(a)(9) requires the defendant’s presence “at the pronouncement of judgment and the imposition of sentence.” The Florida Supreme Court has extended a defendant’s right to be present to resentencing hearings. Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014). A defendant’s absence at resentencing will be harmless if the proceeding involves only a ministerial act. Id. at 339. In this case, Appellant claims that the trial court erred in accepting defense counsel’s waiver of his presence at the hearing where the court orally pronounced a discretionary fine of $2,100 pursuant to section 775.083(1), Florida Statutes, and a related five-percent surcharge of $105 pursuant to section 938.04, Florida Statutes. The trial court properly granted Appellant’s first rule 3.800(b)(2) motion because these fines were not individually pronounced at sentencing, but were erroneously imposed as part of a lump sum. See Osterhoudt v. State, 214 So. 3d 550, 551 (Fla. 2017) (“[W]e hold that trial courts must individually pronounce discretionary fees, costs, and fines during a sentencing hearing to comply with due process requirements.”); Nix v. State, 84 So. 3d 424, 426 (Fla. 1st DCA 2012). However, any alleged error related to the acceptance of counsel’s waiver of Appellant’s presence at the hearing where the court orally pronounced the discretionary fine was harmless. The Appellant, had one, if not two, chances to argue why a fine should not be imposed as part of the rule 3.800(b)(2) process. No objection was ever made. Thus, any purported error was harmless. See Ault v. State, 53 So. 3d 175, 202 (Fla. 2010). IV. Based on the above analysis, we affirm the trial court’s denial of Appellant’s motion for judgment of acquittal. We also affirm the court’s acceptance of counsel’s waiver of Appellant’s presence at the hearing where the discretionary fine was orally pronounced. AFFIRMED. OSTERHAUS, JAY, and TANENBAUM, JJ., concur. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee. 7