DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ELIJAH BANKSTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-231
[December 15, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 17000514CF10A.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
The defendant appeals from his convictions on one count of
kidnapping, one count of sexual battery with anal penetration, one count
of sexual battery with vaginal penetration, and one count of simple battery.
He argues the trial court erred in three respects: (1) by allowing the state,
during jury selection, to amend the information on the count ultimately
charging sexual battery with anal penetration; (2) by not allowing the
defense to present prior bad act evidence relating to the victim’s alleged
financial motive for accusing the defendant of the charged crimes; and (3)
by improperly imposing certain investigative costs, prosecution costs, and
a “crimes against a minor” cost.
On the first and second arguments, we affirm. On the third argument,
we reverse for an evidentiary hearing on the requested investigative costs
and prosecution costs. The state concedes error on the “crimes against a
minor” cost because the victim was not a minor. Thus, we reverse the
imposition of that cost.
We will address each argument in turn.
1. Amending the Information During Jury Selection
“A trial court’s ruling allowing the state to amend the information is
reviewed for abuse of discretion.” Simbert v. State,
226 So. 3d 883, 885
(Fla. 4th DCA 2017) (citation omitted).
Here, during jury selection, the trial court permitted the state, over
defense counsel’s objection, to amend the information’s Count II by
changing the mode of sexual battery charged from defendant “causing his
mouth and/or tongue to penetrate or unite with the [victim’s] vagina” to
“causing [his] penis to penetrate or unite with the [victim’s] anus.”
(emphasis added). The defendant argues the timing of this amendment,
which substantively altered the offense’s elements, violated his due
process right to fair notice of the accusation against him and prejudiced
his defense. See Peevey v. State,
820 So. 2d 422, 423 (Fla. 4th DCA 2002)
(“[I]t is well settled that the state may substantively amend an information
during trial, even over the objection of the defendant unless there is a
showing of prejudice to the substantial rights of the defendant.”) (emphasis
added; citation and internal quotation marks omitted).
The state responds that after the trial court granted the state’s motion
to amend the information, the defendant waived any error by rejecting the
trial court’s contemporaneous offer to immediately continue the trial to
another date.
We agree with the state’s waiver argument. In Peevey, on the day of
trial, the state moved to amend the aggravated assault information to add
an additional victim.
820 So. 2d at 423. The defendant objected to the
amendment and requested a continuance, arguing that he would be
prejudiced because his counsel had not deposed the witnesses regarding
the additional victim.
Id. The state responded that the defense had
deposed both prosecution witnesses who testified that the defendant also
targeted the additional victim.
Id. The trial court granted the state’s
motion to amend but denied the defendant’s motion for continuance.
Id.
On appeal, we reversed, reasoning:
[T]he nature of the defense was significantly altered by the
amendment, and the amended information charged the
Defendant with an entirely new offense. The charge of
aggravated assault on [the additional victim], though arising
from the same circumstances, constituted a separate act that
would require separate evidence to prove. Had the State
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added the charge earlier, the Defendant could have
investigated what evidence the State could present and
formulate a defense. At the time of the amendment, the
Defendant had already deposed all the witnesses in this case
with the object of defending against only the aggravated
assault on [the first victim]. Under these circumstances, the
trial court either should have given the defense a continuance
to prepare for the new charge or denied the amendment.
Id. at 424 (emphasis added).
The instant case is distinguishable from Peevey. Here, after the
defense’s initial objection to the state’s motion to amend the information,
the trial court stated it was granting the state’s motion to amend, and
immediately offered the defendant a continuance because the jury had not
been sworn and thus jeopardy had not attached. The trial court recessed
to permit defense counsel to speak with the defendant. After the recess,
defense counsel announced the defendant would be going forward on the
amended information and did not want to delay the case. The trial court
then conducted a colloquy with the defendant which confirmed the
defendant was aware of the court’s willingness to grant a continuance with
a new trial date and a new jury. The trial court told the defendant that
the choice was “solely one-hundred percent absolutely unequivocally in
your ballpark.” The defendant responded, “Yes, we decided to go forward,
sir.” The trial court also confirmed with the defendant that his counsel
had discussed the pros and cons of the choice. Lastly, the trial court asked
the defendant, “[B]y choosing to go forward, without a continuance, you’ll
not raise that … in the future; do you understand that?” The defendant
responded, “Yes, sir.”
Based on the foregoing, the defendant knowingly, intelligently, and
voluntarily waived any error by rejecting the trial court’s contemporaneous
offer to continue the trial to another date.
2. Not Allowing the Defense to Present Prior Bad Act Evidence
Relating to the Victim’s Alleged Financial Motive in Accusing
the Defendant of the Charged Crimes
“As a general rule, a trial judge’s ruling on the admissibility of evidence
will not be disturbed absent an abuse of discretion. However, a court’s
discretion is limited by the evidence code and applicable case law. A
court’s erroneous interpretation of these authorities is subject to de novo
review.” Pantoja v. State,
59 So. 3d 1092, 1095 (Fla. 2011) (internal
citations and quotation marks omitted).
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Here, during the defense’s opening statement, defense counsel stated
that the jury would hear how the victim allegedly involved herself in a
romantic relationship with the defendant to benefit herself financially.
Defense counsel then stated, “[Y]ou’ll hear that … a romantic relationship
… for purposes of benefitting herself, financially, is not something new.
She’s done it before.”
The state immediately objected. At sidebar, the state argued defense
counsel was seeking to introduce irrelevant prior bad acts. Defense
counsel responded that, before this incident, the victim had married an
eighty-five-year-old man when he was incompetent, which marriage had
to be annulled. According to defense counsel, that prior relationship was
relevant to show the victim takes advantage of vulnerable people to benefit
her financial situation. Defense counsel stated such conduct occurred in
the instant case, because, after the defendant was arrested, the victim
asked the defendant’s family for money to drop the case.
The trial court sustained the state’s objection to defense counsel
referring to the victim’s prior relationship during opening statement.
However, the trial court advised defense counsel it would hear further
argument during the lunch recess. The trial court then instructed the jury
to disregard defense counsel’s statement regarding the victim’s
relationship with another man.
During the lunch recess, when defense counsel raised the issue again,
the state questioned how the defense would lay a foundation to establish
the victim’s financial motive for her prior relationship, given that, during
defense counsel’s deposition of the victim, she testified she had not
married the man for money. Defense counsel told the court that the
defense nevertheless intended to ask the victim in cross-examination
about her financial motive for the prior relationship.
The trial court ruled such evidence would not be admissible during the
trial.
When defense counsel later cross-examined the victim during the trial,
she testified that, at the defendant’s direction, his family offered to pay for
her pre-existing dental repair which was unrelated to the incident. The
defendant’s family later said they would pay for her dental repair if she
agreed to drop the case. The victim admitted she agreed to this
arrangement. However, the arrangement fell through because the
defendant’s family wanted the victim “to sign the paper” and the victim
said, “I’m not signing anything.” The victim never received any money.
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During the defense’s case-in-chief, the defendant’s daughter and sister
both testified the victim, and not the defendant’s family, initiated the
request for the defendant’s family to pay her to drop the case.
On appeal, the defendant argues the trial court erred in not permitting
him to cross-examine the victim about her prior relationship. He argues
that a defendant is given wide discretion in presenting evidence regarding
any motivation or impetus, including bias or corruption, for a witness to
testify untruthfully. Here, the defendant argues, evidence about the
victim’s prior relationship was relevant to show the victim had attempted
to exploit that situation to her financial benefit, just as she had attempted
to do with the defendant by putting him in a vulnerable position and then
seeking to benefit financially.
The state responds that the victim’s prior relationship was not relevant
and could not be used to impeach her credibility.
We agree with the state’s argument. The victim’s prior relationship was
not relevant and could not be used to impeach her credibility. The victim’s
prior relationship was too dissimilar to the facts at issue here and not
probative of her alleged bias or improper motive for testifying against the
defendant. On the contrary, the victim’s prior relationship would have
been improperly used as character evidence showing a prior bad act. See
§ 90.404(2)(a), Fla. Stat. (2019) (“Similar fact evidence of other crimes,
wrongs, or acts is admissible when relevant to prove a material fact in
issue, including, but not limited to, proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
but it is inadmissible when the evidence is relevant solely to prove bad
character or propensity.”) (emphasis added).
3. The Imposition of Investigatory Costs, Prosecution Costs, and
a “Crimes Against a Minor” Cost
“Imposing costs of prosecution involves a question of statutory
interpretation, which is reviewed de novo.” Bevans v. State,
291 So. 3d
591, 593 (Fla. 4th DCA 2020) (citation omitted).
“In all criminal … cases, convicted persons are liable for payment of the
costs of prosecution, including investigative costs incurred by law
enforcement agencies … if requested by such agencies. The court shall
include these costs in every judgment rendered against the convicted
person.” § 938.27(1), Fla. Stat. (2019). “Any dispute as to the proper
amount or type of costs shall be resolved by the court by the
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preponderance of the evidence. The burden of demonstrating the amount
of costs incurred is on the state attorney.” § 938.27(4), Fla. Stat. (2019).
“Investigative costs … include actual expenses incurred in conducting the
investigation and prosecution of the criminal case; however, costs may
also include the salaries of permanent employees.” § 938.27(7), Fla. Stat.
(2019). “Costs for the state attorney must be set in all cases at no less
than … $100 per case when a felony offense is charged …. The court may
set a higher amount upon a showing of sufficient proof of higher costs
incurred.” § 938.27(8), Fla. Stat. (2019). Further, “[a]ny person … being
found guilty of[] any felony … shall pay as a cost in the case, in addition
to any other cost required to be imposed by law, … $225.” § 938.05(1)(a),
Fla. Stat. (2019).
Here, although the state requested investigative costs and prosecution
costs above the statutory minimums, the state did not present any
evidence supporting those additional costs, nor did the trial court
alternatively obtain the defendant’s knowing, intelligent, and voluntary
waiver of evidence supporting those additional costs. See Icon v. State,
322 So. 3d 117, 119 (Fla. 4th DCA 2021) (“[A]n award of investigative costs
need not be supported by evidence if the defendant affirmatively agrees to
pay the requested amount.”). The defendant properly challenged the
imposition of those additional costs in a motion to correct sentencing error,
thus requiring reversal. See, e.g., Desrosiers v. State,
286 So. 3d 297, 300
(Fla. 4th DCA 2019) (reversing trial court’s denial of motion to correct
sentencing error and remanding for factual findings to support the
imposition of costs above the statutory minimums).
The trial court also imposed a “crimes against a minor” cost, even
though the victim was not a minor. The state concedes this error.
Conclusion
Based on the foregoing, we affirm the defendant’s convictions for one
count of kidnapping, one count of sexual battery with anal penetration,
one count of sexual battery with vaginal penetration, and one count of
simple battery. We reverse the imposition of the investigative costs and
prosecution costs exceeding the statutory minimums, and remand for a
hearing at which the state must present supporting evidence for those
additional costs, which the trial court shall resolve by the preponderance
of the evidence. We reverse the imposition of the “crimes against a minor”
cost, and remand for the trial court to vacate that cost.
Affirmed in part, reversed in part, and remanded with instructions.
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WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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