Christopher Armstrong v. State of Florida ( 2020 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-2744
_____________________________
CHRISTOPHER ARMSTRONG,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Francis Allman, Judge.
September 15, 2020
PER CURIAM.
AFFIRMED. Appellant is warned that any future filings that
this Court determines to be frivolous may result in the imposition
of sanctions, including a prohibition against any further pro se
filings in this Court and a referral to the appropriate institution
for disciplinary procedures as provided in section 944.279, Florida
Statutes (2019) (providing that a prisoner who is found by a court
to have brought a frivolous or malicious suit, action, claim,
proceeding, or appeal is subject to disciplinary procedures
pursuant to the rules of the Department of Corrections).
LEWIS and NORDBY, JJ., concur; B.L. THOMAS, J., concurs with
opinion.
B.L. THOMAS, J., concurring with opinion.
I concur in the opinion affirming the denial of relief under
Florida Rule of Criminal Procedure 3.800 of Appellant’s meritless
claim that his forty-year prison sentence was an illegal upward-
departure sentence. There can be no illegal “departure” sentences
for any felony committed after October 1, 1998, where those
sentences are imposed within the statutory-maximum term under
section 921.002(1)(g), Florida Statutes. Lane v. State, 981 So. 2d
596, 598 (Fla. 1st DCA 2008) (quoting § 921.002(1)(g), Fla. Stat.
(2006)) (“[t]he trial court judge may impose a sentence up to and
including the statutory maximum for any [felony] offense.”).
Appellant was legally sentenced to forty years in prison for
burglary with a person assaulted, as the statutory maximum term
for his conviction was life in prison. Id.; § 810.02(2)(a), Fla. Stat.
(2008). He was also subject to thirty years in prison for each of the
four convictions of sexual battery with threats reasonably believed
for a total potential sentence of 120 years imprisonment.
§§ 921.002(1)(g), 794.011(4)(a) Fla. Stat. (2008); George v. State,
213 So. 3d 966, 968 (Fla. 1st DCA 2015) (“[T]he Florida Supreme
Court and this Court have held that multiple punishments for
separate and distinct acts of sexual battery during a single
criminal episode are not barred by double jeopardy principles.”)
(citations omitted).
I would now require Appellant to show cause why he should
not be subject to sanctions, including an order to the Clerk of this
Court to refuse to accept any future filings unless signed by a
member of the Florida Bar. See Baker v. State, 878 So. 2d 1236,
1243 (Fla. 2004) (citing McCrae v. State, 437 So. 2d 1388, 1391–92
(Fla. 1983) (Alderman, C.J. concurring) (holding that courts must
limit successive postconviction cases and bar postconviction
“attacks” on appellate courts “to give due weight to the finality and
the presumption of legality of a final judgment and to restore the
public’s confidence in our criminal system of justice.”) (emphasis
added). The public has a right to appellate review in meritorious
cases and to prevent the undue obstruction caused by meritless
postconviction claims filed in the trial and appellate courts. In this
case, it is particularly important to provide an analysis of
Appellant’s horrific crimes and his prior legal actions, none of
which have been previously addressed in writing by this Court,
2
due to the lack of doubt of Appellant’s guilt at trial and his prior
meritless postconviction actions.
Background
In 2009, the victim of these crimes was a senior university
student studying for final exams. The night of the incident she
came home to a surprise birthday party arranged by her roommate
and a few friends. Later in the evening, Appellant and his co-
defendant Quentin Revels joined the party and were welcomed to
stay. As the night progressed, the two men offered to cook for the
small group, and the victim allowed them to use her kitchen. After
Revels left to buy the ingredients, the victim told her roommate
she was tired and went into her bedroom at about 4:00 a.m., while
the party continued. The victim’s roommate later checked the
victim’s bedroom door, which was unlocked, and the roommate
assumed the victim was asleep.
At 4:36 a.m., Appellant texted Revels and told him people
were leaving the party. Seconds later, Appellant texted Revels,
“I’m in the house with old girl. Come to the side of the house by girl
that’s sleep [sic] window.” Three minutes later, Appellant texted
“In the front.”
Revels and Appellant continued to exchange text messages.
At 6 a.m., Revels texted Appellant, “Brah want some p----.”
Appellant texted back, “Come to the side window. I got you. Or
come in the house.” At 6:02, Revels texted, “I had to leave because
they go [sic] to sleep.” He then texted, “Call me ASAP.” At 6:03,
Appellant texted “I’m in with the girl that sleep [sic], the other
one.” At 6:06, Appellant texted, “Trying to get through the
window.” At 6:07, Revels texted Appellant, “Answer the damn
phone or you’re stuck.” Appellant responded, “I’m never stuck. I’m
with the old girl.” At 6:10, Revels texted Appellant, “Answer the
damn phone.” At 6:11, Appellant texted back, “I’m in the bed with
homegirl.” Revels replied, “Just answer the damn phone, then.” At
6:14, Appellant answered, “I can’t. She sleep [sic]. Come to the first
window.” At 6:19, Revels texted, “I’m trying to get the laptop and
get some p----. You got some. I want some.” A minute later,
Appellant texted, “I’m getting some,” to which Revels promptly
replied, “I want some. Where they at[?]”. At 6:28, Appellant
answered, “Come to the side. The window is up.”
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At some point, the victim awoke. She testified, “[a]s soon as I
opened my eyes, the first thing I saw was a person standing next
to my bed. I was sleeping on the right side of my bed and the person
was standing on the left side, on the other side of the bed. And then
I looked next to me and there was a person in the bed next to me
also.” She identified Appellant as the man who had been standing.
She thought the man in the bed was Revels. She began to scream,
but Revels twisted her head and threatened to kill her. She
testified that she was afraid because she thought Revels would kill
her.
She testified that her shorts and panties had been removed
while she had been asleep. Revels commanded her to place a pillow
over her head. After she put the pillow on her face, one of the men
forcefully performed oral sex on her.
The victim cried and both men told her “to shut up, stop
crying, you’re being too loud.” Regarding which of the men had
performed oral sex on her, the victim later testified: “I was
thinking it was the guy that was in my bed, but the pillow was on
my face. But I assumed it was the guy that was already in my bed.”
After Revels committed two acts of forced sexual intercourse and
two acts of forced oral sex, he then forced the victim to take a
shower to remove evidence of the crimes. To ensure that the victim
obeyed his commands, Revels pulled the shower curtain back while
she showered.
The victim was sexually battered four times by Revels, while
Appellant was found guilty of burglary with a person assaulted, as
he intended to commit the burglary to commit sexual battery. In
Appellant’s trial, the jury was instructed on the law of principals,
and he was found guilty of the sexual batteries, regardless of
whether Revels alone committed the sexual offenses. 1 Appellant
aided, abetted, or counseled Revels to burglarize the victim’s home
1 Section 777.011, Florida Statutes, states,“[w]hoever commits
any criminal offense . . . or aids, abets, counsels, hires, or otherwise
procures such offense to be committed, and such offense is
committed or is attempted to be committed, is a principal in the
first degree and may be charged, convicted, and punished as
such[.”]
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with the intent to sexually batter the victim, while both men
threatened to kill her numerous times, and that threat was
reasonably believed.
The evidence at the separate trials was overwhelming against
both men. After the assault, the victim continued to cry, so Revels
gave her a ring. He told her “his life was in her hands” and wrote
down his name, his phone number, and Appellant’s phone number
on a post-it note. When the victim, her roommate, and a friend
drove to the hospital, they saw a green Mustang, registered to
Appellant, which contained two men; the car looked like the car in
which Appellant and Revels had arrived at the party.
Law enforcement quickly linked the car to Appellant, who
consented to a search of the car. They arrested Appellant. While in
police custody, Appellant’s phone rang, and Revel’s number and
photo appeared on Appellant’s phone. The police then drove to the
area of the victim’s home, saw a man on a cell phone calling a
number, and Appellant’s phone, which was now in the police car,
began ringing. The police arrested Revels and interviewed him.
Revels confirmed that the victim’s statement was essentially
accurate. He confessed he entered the victim’s home through her
window and forced her to have sexual intercourse and oral sex with
him. He also admitted to giving her information about his tattoo
and writing the information on the note. He admitted Appellant
was his “God-brother” and that the two had been in the victim’s
bedroom. Revels stated that Appellant had been in the bed with
the victim and had claimed that he had sexual intercourse with
the victim before Revels joined. Revels also admitted to
threatening to kill the victim. The victim identified Revels in court
as the man in her bed during the criminal ordeal. Revels’ DNA,
fingerprints, and palm print were collected from the victim’s body
and home.
When Appellant was arrested, he initially denied being in the
victim’s home, but he then changed his story and admitted he had
been in the victim’s bedroom. However, he claimed he dove to the
floor when Revels came into the bedroom. Appellant also claimed
that he got off the floor, wished the victim a happy birthday, and
left. He changed his story a second time and admitted he saw
Revels get into the victim’s bed and cover her mouth. He stated he
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thought Revels was going to rape the victim and that Revels told
the victim to be quiet.
The jury in Appellant’s trial received the evidence of the text
messages described above. The victim identified Appellant as the
person who was standing next to her in her bedroom while another
man was in her bed. She testified that she knew it was Appellant
because he and Revels had been in her home during the party.
During Appellant’s trial, the victim described what she
experienced when she awoke to see Appellant standing next to her
and Revels twisting her neck and threatening to kill her, and how
both men acted together:
Q: What were you thinking at that time?
A: I was basically just waiting for everything to go
black. I didn’t know if I was going to live or die. And I just
wanted to do everything right and hope that they didn’t
hurt me.
....
Q: Do you know at that point whether both males
were still in the room?
A: Yes.
Q: And how do you know?
A: I know that they were both still in the room
because I heard them whispering to each other and
talking to each other. And I don’t remember, know
exactly what they were saying, I heard them like go,
(making whispering noise), you know, like whispering
and, I don’t know and the blinds were rustling.
Q: While the oral sex was being performed on you,
what were you doing?
A: Just crying, just sobbing.
Q: How loud were you crying?
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A: I guess pretty loud because they were telling me to
shut up, shut up, stop crying, you’re being too loud, they’ll
hear us, tell her to stop crying.
Q: And when you say they were telling me to shut up,
could you hear two different voices telling you to shut up?
A: I heard them talking about tell her to shut up, shut
up, and then the other one said, shut up, you’re being too
loud, stop crying.
Q: So they were both participating in telling you to
be quiet?
A: Yes.
(Emphasis added).
Appellant was found guilty of all five charges and sentenced
to forty years in prison for burglary with a person assaulted and
four counts of sexual battery.
In both Appellant’s and Revel’s trials, appellate counsel for
both men filed briefs pursuant to Anders v. California, 2
acknowledging that counsel could not assert any reversible error
had occurred during the trials. This Court affirmed Appellant’s
convictions without opinion after independently reviewing the
records. Armstrong v. State, 145 So. 3d 99 (Fla. 1st DCA 2012).
Following this decision, Appellant filed a post-conviction
motion under Florida Rule of Criminal Procedure 3.850, asserting
counsel had been ineffective in failing to adequately convince
Appellant to accept the State’s plea offer of twenty years in prison.
The trial court denied that motion based on defense counsel’s
testimony in the evidentiary hearing.
Defense counsel testified that he explained to Appellant that
he faced life in prison on the charged crime of burglary with a
person assaulted. He also explained to Appellant the law of
principals in Florida that made a person equally culpable even if
2 Anders v. California, 386 U.S. 738 (1967).
7
he did not personally rape the victim. Appellant’s defense counsel
further explained to him that his minimum guideline sentence was
approximately thirty years in prison in addition to the potential
life sentence Appellant faced.
Appellant adamantly wanted to go to trial, given that he had
no intention of accepting a twenty-year prison term as a plea offer
and was willing to accept the exposure of life in prison, although
defense counsel correctly predicted he would not receive life in
prison. “The posture was Mr. Armstrong wanted to go to trial . . .
This was going to be a trial from the beginning.” Defense counsel
further testified that Appellant understood his culpability as a
principal and that all of Revels’ actions in committing the sexual
batteries would “hurt him . . . which in essence is that [principal]
theory of law.” Defense counsel met with Appellant five times
before trial, and the “central theme” of their conversations was
Appellant’s culpability under section 777.011, Florida Statutes
(2008).
The trial court issued an order denying Appellant’s motion
asserting ineffective assistance of counsel under the Sixth
Amendment to the United States Constitution. This Court
affirmed the trial court’s denial of Appellant’s ineffective
assistance of counsel motion without opinion. See Armstrong v.
State, 243 So. 3d 924 (Fla. 1st DCA 2018).
Analysis
In the present case, Appellant filed a motion under rule 3.800,
asserting that his forty-year sentence for a crime with a maximum
term of life imprisonment is illegal under Apprendi v. New Jersey,
530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296(2004), because the charged crime of burglary with a person
battered or assaulted requires a separate jury finding that
Appellant battered the rape victim. This argument is meritless as
Appellant’s cited cases only require separate jury findings to
exceed the statutory maximum.
In Florida, a trial court is authorized to impose the statutory
maximum term without any “departure” or separate jury finding
for every felony offense. § 921.002(1)(g), Fla. Stat. (“The trial court
judge may impose a sentence up to and including the statutory
8
maximum for any [felony] offense”). Appellant’s forty-year prison
sentence was less than the statutory maximum. Thus, the trial
court did not upward depart but sentenced Appellant within its
discretion as this Court held more than a decade ago:
In Apprendi, the Supreme Court held that “other
than the fact of prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proven
beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348.
(emphasis added). In Blakely v. Washington, 542 U.S.
296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the
Supreme Court clarified that “the ‘statutory maximum’
for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.”
Under the Criminal Punishment Code, a trial court
may impose any sentence up to the statutory maximum
without any additional factual
findings. See § 921.002(1)(g), Fla. Stat. (2006) (stating
that under the Criminal Punishment Code “[t]he trial
court judge may impose a sentence up to and including
the statutory maximum for any offense ....”); see also Fla.
R. Crim. P. 3.992. Because the appellant was convicted of
a second-degree felony the trial court could have
sentenced appellant to as much as fifteen years’
imprisonment without making any finding regarding
victim injury. See §§ 775.082(3)(c); 784.045(2), Fla. Stat.
(2006). As such, the scoring of death victim injury points
does not violate the dictates of Apprendi and Blakely. See
Williams v. State, 907 So. 2d 1224 (Fla. 5th DCA 2005)
(holding that reliance on Blakely misplaced where
defendant’s sentence within statutory maximum for
crime of which he was convicted); Gisi v. State, 848 So. 2d
1278, 1282 (Fla. 2d DCA 2003) (victim injury points must
be submitted to jury if addition of points causes sentence
to go beyond statutory maximum).
Lane, 981 So. 2d at 597–98.
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Thus, because Appellant’s sentence was not an upward
departure and was less than the statutory maximum, the trial
court properly denied the rule 3.800 motion. See also Harper v.
State, 988 So. 2d 1212 (Fla. 1st DCA 2008). This well-established
principle of law has been extensively cited in Florida. See Remie v.
State, 100 So. 3d 744 (Fla. 5th DCA 2001); Carter v. State, 2 So. 3d
1037 (Fla. 3rd DCA 2009); Williams v. State, 288 So. 3d 44 (Fla. 2d
DCA 2019). And, in federal district court:
Further, Apprendi is only concerned with a fact that
increases a penalty beyond the prescribed statutory
maximum. Here, the statutory maximum sentence on the
felon in possession of a firearm charge, a second degree
felony, was 15 years imprisonment (Respondent’s Ex. 5 at
pg. 2); Section 775.082(3)(c), Fla. Stat. (person convicted
of a second degree felony may be punished by a term of
imprisonment not exceeding 15 years). His 10 year
sentence did not exceed the statutory maximum.
Moreover, in Florida,
a trial court may impose any sentence up to the
statutory maximum without any additional
factual findings. See § 921.002(l)(g), Fla. Stat.
(2006) (stating that under the Criminal
Punishment Code “[t]he trial court judge
may impose a sentence up to and including
the statutory maximum for any offense....”);
see also Fla. R. Crim. P. 3.992.
Lane v. State, 981 So. 2d 596, 598 (Fla. 1st DCA 2008).
Because Petitioner pleaded guilty to the charge of felon
in possession of a firearm, a second degree felony, the
state trial court could have sentenced Petitioner (absent
the plea agreement) to as much as fifteen years in prison
without making any additional factual findings.
Battle v. Sec’y, Dep’t of Corr., No. 8:06-CV-1137-T-27TGW, 2010
WL 11636595, at *3 (M.D. Fla. Apr. 15, 2010) (emphasis added).
I would require Appellant to show cause why he should not be
barred from further pro se appeals under State v. Spencer, 751 So.
2d 47 (Fla. 1999). Appellant is not entitled to endlessly relitigate
10
his criminal conviction for these offenses; the public and the victim
are entitled to finality, as the Florida Supreme Court recognized
long ago. Rivera v. State, 728 So. 2d 1165, 1166 (Fla. 1998) (citing
Attwood v. Singletary, 661 So. 2d 1216, 1217 (Fla. 1995) (“This
Court has a responsibility to ensure every citizen’s access to courts.
To further that end, this Court has prevented abusive litigants
from continuously filing frivolous petitions, thus enabling the
Court to devote its finite resources to those who have not abused
the system.”)). The Legislature has also recognized that prisoners
should not be allowed to file meritless and abusive collateral
appeals. See § 944.279, Fla. Stat.
This appeal is frivolous and abusive. Appellant has had six
judicial opportunities to contest his convictions and sentences.
Appellant’s latest argument raised in this Court was completely
meritless because as a principal under section 777.011, Florida
Statutes, and under the Criminal Punishment Code’s provision in
section 921.002(1)(g), Florida Statutes, he was subject to a
punishment of life in prison for the burglary he committed during
which he (as a principal) and Revels sexually battered the victim
four times. His forty-year prison term for this burglary was,
therefore, not an “upward departure” as we held in Lane. See 981
So. 2d at 598–99.
In this case and Appellant’s co-defendant’s case, the rape
victim had to testify twice in pre-trial depositions, testify twice at
trial, give an interview to police soon after the assaults, undergo a
sexual-assault [rape-kit] examination in the hospital, and twice
identify her sexual assailants in court while describing their
sexual crimes. She was required to relive this horrific experience
multiple times through this process. This Court, the public, and
crime victims are entitled to finality in criminal cases and criminal
appeals. Appellant should be required to explain why the judicial
labor in this horrific case should not be brought to an end, once and
for all.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Christopher Armstrong, pro se, Appellant.
Ashley Moody, Attorney General, and Damaris Reynolds,
Assistant Attorney General, Tallahassee, for Appellee.
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