County Criminal Court: CRIMINAL LAW – Jury trial – Terms of subsequent final judgment of dissolution concerning contact with ex-wife superseded terms of prior injunction. Therefore, JOA should have been granted. Judgment and sentence reversed. Lagesse v. State, No. CRC 06-25 APANO, (Fla. 6th Cir. App. Ct. June 20, 2007).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

JEFFREY LAGESSE

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 06-25 APANO

                                                                       UCN522006AP000025XXXXCR

 

STATE OF FLORIDA

 

            Appellee.

___________________________/

 

Opinion filed ____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Court Judge Thomas B. Freeman

 

Joy K. Goodyear, Esquire

Assistant Public Defender

 

Theodora Christopher, Esquire

Assistant State Attorney

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant, Jeffrey Lagesse’s, appeal from a judgment and sentence entered against him following a jury trial. After reviewing the briefs and record, this Court reverses the judgment and sentence.

            The defendant claims that his Renewed Motion for Judgment of Acquittal should have been granted. An order on a motion for judgment of acquittal is subject to de novo review. Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001).

            The defendant was convicted of violating a domestic violence injunction. That injunction provided in pertinent part that:

                                    Respondent (the defendant) shall have no contact

                                    with the Petitioner unless otherwise provided in

                                    this section, or unless paragraphs 13 through 19

                                    below provide for contact connected with temporary

                                    custody of and visitation with minor chid(ren). Unless

                                    otherwise provided herein, Respondent shall have no

                                    contact with Petitioner. Respondent shall not directly

                                    or indirectly contact Petitioner in person, by mail,

                                    email, fax, telephone, through another person, or in

                                    any other manner. Further Respondent shall not contact

                                    anyone connected with Petitioner’s employment or

                                    school to inquire about Petitioner or to send any messages

                                    to Petitioner … .

                                   

Florida Statute §741.30(1)(c) provides that:

 

                                    In the event a subsequent cause of action is filed

                                    under chapter 61, any orders entered therein

                                    shall take precedence over any inconsistent

                                    provisions of an injunction issued under this

                                    section which addresses matters governed by

                                    chapter 61.

 

There was a subsequent dissolution of marriage action pursuant to chapter 61. (Case No. 01-8551 FD). The final judgment of dissolution of marriage  in that action, entered after the injunction that is the subject of this criminal case, stated:

                                    … both of the parents shall have shared parental

                                    responsibility to the extent that they shall

                                    communicate and share information relative to

                                    all important decisions pertaining to their child’s

                                    health, education, activities and travel. It is the

                                    intent that the parties shall fully cooperate in

                                    making joint decisions relative to the child.

 

The language in the subsequent final judgment of dissolution of marriage conflicts with the language of the injunction. The injunction prohibits all communication between the ex-spouses, while the final judgment of dissolution of marriage mandates communication --- at least as the communication relates to the general welfare of the minor child. Pursuant to §741.30(1)(c), Fla. Stat. (2006), the language in the final judgment of dissolution of marriage prevails. It is beyond dispute that the communication that formed the basis for the charge directly related to the health, education, activities or travel of the minor child; and was in furtherance of the family court’s directive that the parents make joint decisions relative to the minor child. Therefore, as the communication was permitted by the final judgment of dissolution of marriage, the defendant’s Renewed Motion for Judgment of Acquittal should have been granted.[1]

            This Court notes that it is only the language in the injunction that conflicts with the final judgment of dissolution of marriage that is of no legal effect. That portion of the injunction that does not conflict with the final judgment of dissolution of marriage is in full force and effect. The ex-wife is, of course, free to seek additional protections, if merited, in the appropriate court.

            IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and the defendant shall be discharged.

            DONE AND ORDERED at Clearwater, Pinellas County, Florida this _____ day of June, 2007.

 

                                                                                    __________________________

                                                                                                Linda R. Allan

                                                                                                Circuit Court Judge

 

 

 

                                                                                    ____________________________

                                                                                                R. Timothy Peters

                                                                                                Circuit Court Judge

 

 

 

                                                                                    ______________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Court Judge

cc:        Office of the State Attorney

 

            Office of the Public Defender

 

            Honorable Thomas B. Freeman

 

 

 

 

 



[1] Given this Court’s ruling on the first issue raised by the defendant, the defendant’s second issue need not be addressed.