County Criminal Court:  CRIMINAL LAW – Jury Trial - Unlicensed Specialty Contracting – no error in denying defendant’s motion to dismiss – State is not required to traverse motion not filed pursuant to Rule 3.190(c)(4) – record shows prosecution was timely commenced within 2-year statute of limitations – no abuse of discretion in denying defendant’s motion to continue trial – no abuse of discretion in the amount of damages awarded -- Judgment affirmed.  Southerland v. State, No. 01-02021 CFANO (Fla. 6th Cir. App. Ct. June 16, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

COLUMBUS J. SOUTHERLAND,

                        Appellant,

vs.                                                                                            Appeal No. CRC 01-02021 CFANO

                                                                                                UCN522001MM02121XXXXNO

STATE OF FLORIDA,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Order Withholding

Adjudication of Guilt

Judge Amy M Williams

Judge Richard A. Luce

 

Columbus J. Southerland

Appellant, pro se

 

Gary M. White, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Columbus J. Southerland (Southerland), from the Order Withholding Adjudication of Guilt and Placing Defendant on Probation, entered December 11, 2000. Upon review of the briefs, [1] the record, and being otherwise fully advised, the Court affirms the Order as set forth below.

            The record shows that on September 21, 2000, the State filed a first-degree misdemeanor information against Southerland charging him with Unlicensed Specialty Contracting (Painting) in violation of Florida Statutes, § 489.127(1)(f), and Laws of Florida, Chapter 75-489.  The State alleged that, on or about July 31, 1999, Southerland unlawfully engaged in the business of Painting Specialty Contractor during his transaction with Frank A. Sanna.  After being found guilty by jury verdict, the trial court withheld adjudication of guilt, but placed Southerland on 12 months probation and assessed restitution to Frank A. Sanna in the amount of $1,901.17.  Following his notice of appeal, the trial court stayed its order upon Southerland posting a supersedeas bond of $2,500.  The trial court also determined that Southerland was not indigent for purposes of appeal.

            On appeal before this Court, Southerland raises six issues:  (1) the court erred in denying Southerland’s Motion to Dismiss based on a lack of probable cause; (2) the court erred in denying Southerland’s Motion to Dismiss based on Statute of Limitations; (3) the court erred when it denied Southerland’s Motion to reset trial date based on the State’s non-compliance of discovery; (4) the court erred when it failed to swear the jury as required by the rules of criminal procedure; (5) the court erred in denying Southerland’s Motion for new trial and arrest of judgment based on new found evidence that would support verdict of not guilty; and, (6) the court erred in setting excessive bond, restitution for appeal, and finding defendant solvent for purposes of appeal.

            In reviewing the first two issues de novo, the Court finds that there is no support for Southerland’s argument that the trial court erred in denying his Motion to Dismiss.  See e.g. Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003)(stating that the standard of review for a trial court order regarding a motion to dismiss is de novo);  State v. Glatzmayer, 789 So.2d 297, 301 (Fla. 2001)(providing that a ruling on probable cause is subject to de novo review but the court’s factual findings must be sustained if supported by competent substantial evidence).  As pointed out by the trial court during the hearing below, the Motion was not filed pursuant to Rule 3.190(c)(4), so the State was not required to file a traverse.  A review of the record shows that the State presented a prima facie case of unlicensed specialty contracting and timely commenced prosecution of Southerland within the two-year statute of limitations. 

            In reviewing the third issue, the Court finds that Southerland fails to demonstrate that the trial court abused its discretion in denying Southerland’s motion to continue the trial.  See e.g. Woods v. State, 490 So.2d 24, 26 (Fla. 1986)(stating that a trial court’s ruling on a continuance will not be disturbed unless an abuse of discretion is shown).  As the transcript from the pre-trial hearing shows, Southerland admitted to timely receiving the State’s “package” of discovery, but denied receiving the witness list.  In response to his denial, the trial court allowed Southerland to interview Mr. Sanna, the only witness, and also conducted a hearing before concluding that no discovery violation had occurred.  As the record supports the trial court’s ruling, the Court cannot find that the trial court abused its discretion in proceeding to trial.  See id.  

            As to issue four, the transcript clearly provides that the jury was duly sworn by the Clerk of Court prior to opening statements.  In reviewing the fifth issue, the Court finds that Southerland is unable to show that the trial court erred in denying his Motion for New Trial.  See e.g. Blanco v. State, 702 So.2d 1250, 1252 (Fla. 1997)(setting forth the standard for the trial court to grant a new trial on the basis of newly discovered evidence).  Rather, the “new found evidence” cited by Southerland in his brief is an advertisement dated July 31, 1999, and an “occupational license” with a computer print-out date of October 6, 2000, both documents that should have been readily available to Southerland prior to trial on December 11, 2000.  In further assessing the fifth issue, the Court finds that Southerland fails to cite to any record support for his general argument that the verdict is contrary to the law and weight of the evidence.         

            Lastly, is addressing the sixth issue, the Court finds that the trial court did not abuse its discretion in setting bond at $2500, or $373.83 more than court costs and fines, $225, and restitution, $1901.17, combined.  See e.g. Pabian v. Pabian, 469 So.2d 189, 191 (Fla. 4th DCA 1985)(providing that the proper amount and conditions of the supersedeas bond are determined by the facts of a particular case).  Likewise, the record shows that the trial court considered testimony and evidence from both parties in determining the amount of restitution, which was less than the amount sought by the State.  As the record supports the amount awarded to Mr. Sanna for damages and loss, the Court cannot find that the trial court abused its discretion in this regard.  See e.g.  Johnston v. State, 870 So.2d 877, 878 (Fla. 1st DCA 2004)(explaining that the amount of restitution ordered by a trial court is subject to review for abuse of discretion).  The final point, whether the trial court erred in finding Southerland solvent for the purposes of appeal, is moot given this Court’s Order Granting Appellant’s Request to be Declared Indigent, entered July 18, 2002.   Therefore, it is, 

            ORDERED AND ADJUDGED that the Order Withholding Adjudication of Guilt and Placing Defendant on Probation is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of June 2004.

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

Copies furnished to:

Judge Amy M. Williams

 

Judge Richard A. Luce

 

Columbus J. Southerland

730 Driftwood Lane

Tarpon Springs, FL  34689

 

Gary M. White, Esquire

Assistant State Attorney



[1] The parties resubmitted their briefs to include citations to the transcripts in response to this Court’s Order Requiring Appellant to File Amended Initial Brief, entered August 8, 2003.  The Court will consider the Appellant’s issues as presented in his most recent brief, filed September 2, 2003.