       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            JOSHUA ZELAYA,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-2710

                            [October 17, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Kathleen McHugh, Judge; L.T. Case No.
14013583CF10A.

   Carey Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Appellant, Joshua Zelaya, appeals his judgment and sentence for three
counts of robbery with a weapon, two counts of attempted robbery with a
weapon, one count of aggravated battery with a deadly weapon, and one
count of resisting arrest without violence. On appeal, Appellant argues
that his trial counsel was ineffective on the face of the record and that the
court made several evidentiary mistakes. We affirm on these arguments
without further comment. However, because the jury returned an
inconsistent verdict on the aggravated battery with a deadly weapon count,
we reverse and remand for a reduced charge and resentencing on that
count. On remand, Appellant is also entitled to have several errors on his
scoresheet corrected.

   Background

   Appellant and his co-defendant were accused of robbing a group of five
young adults on a beach while using shirts to cover their faces and
brandishing concealed items they portrayed as guns. While demanding
property, Appellant struck, but did not injure, one of the victims with the
concealed item he represented was a gun. Despite their attempt at
disguise, the victims recognized and were able to describe Appellant and
his co-defendant as the robbers based on earlier interactions they had with
them. Using the descriptions provided by the victims, the police quickly
encountered Appellant and his co-defendant in the parking lot of a nearby
motel. Appellant fled, but was apprehended shortly thereafter. When he
was arrested, Appellant had one of the victim’s debit cards in his pocket.
The victims later positively identified Appellant out of photo-lineups.

    Based on the foregoing, the State charged Appellant with three counts
of robbery with a firearm/deadly weapon, two counts of attempted robbery
with a firearm/deadly weapon, one count of aggravated battery with a
deadly weapon, and one count of resisting a police officer without violence.
The State also filed a pre-trial notice of intent to seek the imposition of a
mandatory sentence pursuant to Appellant’s status as a Prison Releasee
Reoffender (“PRR”).

    A jury found Appellant guilty of three counts of robbery with a weapon
(lesser included offenses of robbery with a firearm/deadly weapon), two
counts of attempted robbery with a weapon (lesser included offenses of
attempted robbery with a firearm/deadly weapon), one count of aggravated
battery with a deadly weapon, and one count of resisting arrest without
violence. The court adjudicated Appellant guilty pursuant to the jury’s
verdict and set the matter for sentencing.

    At Appellant’s sentencing hearing, the State submitted a scoresheet
which scored Appellant for two offenses he was not convicted of: attempted
first degree murder (116 points) and robbery with a firearm (46 points). It
also assessed 40 additional points against Appellant for a severe victim
injury although the evidence did not establish that any of the victims in
the case were actually injured. In total, the scoresheet assigned Appellant
417.80 points which equated to a lowest permissible sentence of 292.35
months (24+ years) in prison and a maximum sentence of 135 years plus
364 days. Defense counsel did not object to the scoresheet.

    Because Appellant qualified as a PRR, however, he was not sentenced
according to his scoresheet and was instead sentenced to the minimum
mandatories under the PRR statute: 30 years in prison on each first degree
felony count (robbery with a weapon), 15 years on the second degree felony
counts (attempted robbery with a weapon and aggravated battery), and
364 days on the resisting without violence count, all to run concurrent.
This appeal follows.


                                     2
   Analysis

      a) Inconsistent Verdict

    Appellant argues that by finding Appellant guilty of the lesser included
offenses of robbery and attempted robbery with a weapon in lieu of robbery
and attempted robbery with a firearm/deadly weapon, the jury essentially
acquitted Appellant of possession of a firearm or deadly weapon. Thus,
Appellant maintains that the jury’s verdict finding him guilty of aggravated
battery with a deadly weapon created a legal inconsistency. We agree.

   “An inconsistent verdicts claim presents a pure question of law and is
reviewed de novo.” Brown v. State, 959 So. 2d 218, 220 (Fla. 2007).

    In Brown, the Florida Supreme Court described the general principles
of inconsistent jury verdicts as follows:

      As a general rule, inconsistent jury verdicts are permitted in
      Florida.   Inconsistent verdicts are allowed because jury
      verdicts can be the result of lenity and therefore do not always
      speak to the guilt or innocence of the defendant.

      This Court has recognized only one exception to the general
      rule allowing inconsistent verdicts. This exception, referred to
      as the “true” inconsistent verdict exception, comes into play
      when verdicts against one defendant on legally interlocking
      charges are truly inconsistent. . . . [T]rue inconsistent verdicts
      are those in which an acquittal on one count negates a
      necessary element for conviction on another count.

Id. (internal citations and quotation marks omitted).

    Based on these principles, a jury’s finding that a defendant did not
possess a firearm but at the same time used a firearm or deadly weapon
is legally inconsistent when the possession or use is a necessary element
of the crime. See Gerald v. State, 132 So. 3d 891, 895 (Fla. 1st DCA
2014)(holding that jury’s verdict finding a defendant guilty of aggravated
assault while at the same time finding the defendant did not possess a
firearm or deadly weapon was legally inconsistent since a necessary
element of aggravated assault is use of a deadly weapon).

    Here, the jury acquitted Appellant of the offenses of robbery with a
firearm or a deadly weapon and attempted robbery with a firearm or a
deadly weapon and, instead, found him guilty of the lesser included

                                      3
offenses of robbery and attempted robbery with a weapon. In other words,
through its verdict, the jury found as a matter of law that Appellant did
not possess a firearm or deadly weapon when he committed the robbery
and attempted robbery offenses. Despite this finding, the jury nonetheless
found that Appellant was guilty of the offense of aggravated battery, which
can be committed in any of three ways: (1) intentionally or knowingly
causing great bodily harm, permanent disability, or permanent
disfigurement; or (2) using a deadly weapon; or (3) committing a battery
on a victim who is known to be pregnant. § 784.045(1), Fla. Stat. (2014).
The jury specifically found that Appellant committed aggravated battery
by “using a deadly weapon.” Indeed, this was the only manner in which
Appellant could have been convicted as there was no evidence that the
victim was injured or was pregnant. Accordingly, in light of the fact that
the jury acquitted Appellant of possessing a firearm or deadly weapon
when he committed the robbery offenses, it was legally inconsistent for the
jury to find that Appellant was guilty of simultaneously committing an
aggravated battery with a deadly weapon. Cf. State v. Carswell, 914 So.
2d 9, 12 (Fla. 4th DCA 2005).

   Although Appellant did not raise the issue of the inconsistent verdict
below, the error is fundamental as it pertains to Appellant’s aggravated
battery with a deadly weapon conviction. Proctor v. State, 205 So. 3d 784,
789 (Fla. 2d DCA 2016) (jury’s legally inconsistent verdict finding
defendant guilty of aggravated assault with a deadly weapon created
fundamental error as to that count).           Based on the presence of
fundamental error in the aggravated battery with a deadly weapon count,
the remedy is reversal of Appellant’s conviction for aggravated battery with
a deadly weapon and remand for the trial court to enter a judgment on the
lesser included offense of battery. Id. As Appellant was sentenced to a 15
year PRR minimum mandatory on the aggravated battery conviction (a
second degree felony) which would not apply to a battery conviction (a first
degree misdemeanor), Appellant is also entitled to resentencing on this
count. Id.

      b) Scoresheet Errors

   Appellant argues that he is also entitled to resentencing based on the
scoresheet errors discussed above. We disagree.

    A defendant who illustrates an erroneous imposition of points on his
scoresheet is entitled to have the errors corrected. Ledesma v. State, 958
So. 2d 477, 479 (Fla. 4th DCA 2007). However, that defendant is not
entitled to resentencing if the errors were harmless. Id. A scoresheet error
“is harmless if the record conclusively shows that the trial court would

                                     4
have imposed the same sentence using a correct scoresheet.” Brooks v.
State, 969 So. 2d 238, 241 (Fla. 2007).

    In this case, Appellant was sentenced to the lowest sentence possible
under the PRR statute. Thus, regardless of the minimum score reflected
on Appellant’s scoresheet, Appellant could not have received a lower
sentence unless the State did not seek to sentence him as a PRR. Although
Appellant argues that the State’s decision to seek a PRR sentence may
have been influenced by his scoresheet, the record reflects that the State
filed its notice of intent to seek a PRR sentence prior to trial—well before
Appellant’s scoresheet was prepared. Accordingly, there is no possibility
that the scoresheet errors affected either the State’s PRR decision or
Appellant’s ensuing sentence. Thus, the scoresheet errors complained of
by Appellant are harmless.

   Conclusion

    Based on the foregoing, we reverse Appellant’s conviction and sentence
for aggravated battery and direct the court to adjudicate Appellant guilty
of the lesser included offense of battery and resentence him on that offense
accordingly. In doing so, the court should also enter a corrected
scoresheet.

   Reversed and remanded.

CIKLIN, J., concurs.
CONNER, J., concurs in part and dissents in part with opinion.

CONNER, J., concurring in part and dissenting in part.

   I concur with the majority opinion except for the holding that the trial
court erred by determining that the jury’s verdict on the aggravated battery
charge was not legally inconsistent with the robbery and attempted
robbery charges. I respectfully dissent because the allegations in the
information, the evidence presented, and the jury instructions established
that the aggravated battery charge was not legally interlocking with the
robbery and attempted robbery charges.

   Appellant was charged by information with three counts of robbery and
two counts of attempted robbery, all of which alleged that Appellant
“carried a firearm or other deadly weapon.” Additionally, Appellant was
charged with one count of aggravated battery which alleged that he
touched or struck the victim “with a deadly weapon, to wit: a firearm used
as a bludgeon.” As to the robbery and attempted robbery counts, the State

                                     5
specifically alleged that Appellant was “in actual possession” of a firearm.
L.S. was the victim of one of the counts of robbery, as well as the
aggravated battery count.

   Four of the five robbery victims testified at trial, and all four testified
that both Appellant and his codefendant carried guns. All four testified
that the guns were covered by some kind of cloth and admitted that they
did not actually see a gun. All four testified that Appellant carried a “big
gun” or long gun. L.S. and another victim described the gun Appellant
carried to be an “AK 47.” L.S. and a different victim testified that Appellant
hit L.S. on the head with the gun he was carrying. More specifically, L.S.
testified:

      [Appellant] said: Hey bitch, I want all your sh**. I saw, I know
      you have something. And then he kind of—he like hit me on
      the face [with the gun]. It wasn’t hard, he tried to scare me.

One of the four witnesses also testified that Appellant said, with reference
to the long gun he carried, that he “was not afraid to use it.”

   After instructing the jury on the basic elements of robbery and
attempted robbery, the trial court instructed the jury that:

      If you find the defendant guilty of the crime of [robbery]
      [attempted robbery] then you must further determine beyond
      a reasonable doubt if in the course of committing the [robbery]
      [attempted robbery] the defendant carried some kind of a
      weapon. . . . A weapon is a deadly weapon if it is used or
      threatened to be used in a way likely to produce death or
      great bodily harm.

      If you find the defendant carried a weapon that was not a
      firearm or a deadly weapon in the course of committing the
      robbery, you should find him guilty of robbery with a weapon.
      A weapon is defined to mean any object that could be used to
      cause death or inflict serious bodily injury.

(emphases and bold emphases added).

    As to the aggravated battery count, the trial court instructed the jury
that the crime had two elements. The first element was that Appellant
“intentionally touched or struck” L.S. The second element was that in
committing the battery Appellant “used a deadly weapon, to wit a firearm,”
followed by the same definition of a deadly weapon used for the robbery
and attempted robbery counts.

                                      6
    As to the robbery and attempted robbery counts, the verdict form gave
five options:

      A. Guilty of [Robbery] [Attempted Robbery] (Firearm/Deadly
         Weapon), as charged in the Information;

      B. Guilty of [Robbery] [Attempted Robbery] (Weapon), a
         lesser-included offence;

      C. Guilty of [Robbery] [Attempted Robbery], a lesser included
         offense;

      D. Guilty of Petit Theft; a lesser-included offense; and

      E. Not Guilty.

(bold emphasis added). Below option A, the jury was asked to answer “yes”
or “no” to the interrogatory: “During the course of the crime committed,
did the Defendant, JOSHUA ZELAYA, actually possess a firearm?” (bold
emphasis added). For each of those counts, the jury checked option B,
“Guilty of [Robbery] [Attempted Robbery] (Weapon).” (bold emphasis
added). The firearm interrogatory was not answered, as it applied to only
option A.

   As to the aggravated battery count, the verdict form gave three options:

      A. Guilty of Aggravated Battery (Deadly Weapon), as charged
         in the Information;

      B. Guilty of Battery, a lesser-included offense; and

      C. Not Guilty.

As to that count, the jury checked option A, “Guilty of Aggravated Battery
(Deadly Weapon).”

   The majority correctly points out that our supreme court has
determined that “[a]s a general rule, inconsistent jury verdicts are
permitted in Florida.” Brown v. State, 959 So. 2d 218, 220 (Fla. 2007)
(quoting State v. Powell, 674 So. 2d 731, 732 (Fla. 1996)). The only
recognized exception to the general rule is the “true” inconsistent verdict,
which “comes into play when verdicts against one defendant on legally
interlocking charges are truly inconsistent.” Id. (quoting Powell, 674 So.
2d at 733). In other words, “true inconsistent verdicts are those in which


                                     7
an acquittal on one count negates a necessary element for conviction on
another count.” Id. (emphasis added) (quoting Powell, 674 So. 2d at 733).

    Relying on Gerald v. State, 132 So. 3d 891 (Fla. 1st DCA 2014), the
majority contends that because the jury in the instant case determined
that Appellant did not actually possess a firearm or deadly weapon for the
robbery charges, it was legally inconsistent for the jury to find Appellant
guilty of aggravated battery with a deadly weapon. However, the majority’s
reliance on Gerald is problematic, because there, the First District
addressed an inconsistency between the jury’s verdict on the underlying
offense, aggravated assault, and the interrogatory propounded for that
offense regarding whether the defendant actually possessed a firearm
during the aggravated assault. Id. at 892. In the instant case, the majority
is using a verdict on a lesser-included offense to robbery and attempted
robbery counts to negate an element relating to the aggravated battery
count. I have found no other case in Florida to make such an application.

    While it is true that in the information all of the robbery and attempted
robbery counts, as well as the aggravated battery count, contained an
allegation regarding a firearm, I contend the firearm allegation in the
aggravated battery count is significantly different from the firearm
allegation in the robbery and attempted robbery counts. More specifically,
the aggravated battery count alleged Appellant touched or struck the
victim “with a deadly weapon, to wit: a firearm used as a bludgeon.” In
addition, as to all of the robbery and attempted robbery counts, as well as
the aggravated battery count, the jury was instructed that “[a] weapon is
a deadly weapon if it is used or threatened to be used in a way likely to
produce death or great bodily harm.” Moreover, as to the robbery and
attempted robbery counts, but not the aggravated battery count, the jury
was instructed that “[a] weapon is defined to mean any object that could
be used to cause death or inflict serious bodily injury.”

   The structure of the verdict form also indicated to the jury a difference
as to the deadly weapon allegation between the aggravated battery count
and the robbery and attempted robbery counts. As to the robbery and
attempted robbery counts, the verdict form makes two specific references
to a firearm: “Guilty of [Robbery] [Attempted Robbery] (Firearm/Deadly
Weapon),” followed by an interrogatory asking whether Appellant “actually
possess[ed] a firearm.” Significantly, however, the verdict form as to the
aggravated battery count, is completely devoid of the word “firearm.” As
discussed above, the jury was instructed that a deadly weapon is “used in
a way likely to produce death or great bodily harm,” and a weapon is
an “object that could be used to cause death or inflict serious bodily
injury.”

                                     8
   As L.S. and another witness testified, and the State clearly argued to
the jury, L.S. was hit in the head with what was perceived to be a long gun
under a cloth. Like the majority, it appears to me that the jury was
satisfied that whatever Appellant was holding under the cloth was in fact
not a long gun. However, it appears to me that the jury could logically
have concluded, based on the allegations, the evidence, and the jury
instructions, that whatever Appellant was holding under the cloth, which
he used to hit L.S. in the head, was a weapon “threatened to be used in a
way likely to produce death or great bodily harm,” particularly in light of
the testimony that he “was not afraid to use it.” Thus, I conclude that the
jury’s verdicts were not legally inconsistent when the jury found Appellant
guilty of robbery and attempted robbery using a weapon, and aggravated
battery involving a deadly weapon, particularly where the State alleged the
weapon was used as a bludgeon.

    Additionally, I think our opinion in Debiasi v. State, 681 So. 2d 890
(Fla. 4th DCA 1996) is instructive for the resolution of this case. There,
the defendant was charged with battery on a law enforcement officer and
resisting arrest with violence. Id. at 890. The same officer was alleged to
be the victim for both counts. Id. As to both counts, the evidence was
that the defendant resisted the officer by striking him during an arrest.
Id. The jury found the defendant not guilty of battery on a law enforcement
officer, but guilty of resisting arrest with violence. Id. On appeal, the
defendant argued the jury verdict finding him guilty of resisting arrest with
violence was inconsistent with the verdict finding him not guilty of battery
on a law enforcement officer, where the conduct was the same for both
offenses. Id. We held that “even if the charges are essentially mirror
images of each other, battery on a law enforcement officer is not an element
of resisting arrest with violence.” Id. at 891. If battery on a law
enforcement officer and resisting arrest with violence are “mirror image
charges” because the conduct of the defendant in striking the officer was
the same for both offenses, then it seems to me that Appellant carrying an
object under a cloth which appeared to be a long gun to the witnesses,
makes the aggravated battery charge a “mirror image charge” to the
robbery and attempted robbery charges in this case. However, similar to
Debiasi, aggravated battery is not an element of the robbery or attempted
robbery charges. In other words, similar to Debiasi, the charges in this
case are not legally interlocking.

   I concede that all of the robbery, attempted robbery, and aggravated
battery charges in this case were factually interlocking (Appellant was
carrying an object covered by a cloth that the witnesses believed was a
long gun while committing all of the offenses). However, I do not agree the
aggravated battery charge was legally interlocking with the robbery and

                                     9
attempted robbery charges. I also do not agree that a verdict on a lesser-
included offense for one charge can be used to negate an element of a
completely different and legally distinct charge.

   As our supreme court has said, “Inconsistent verdicts are allowed
because jury verdicts can be the result of lenity and therefore do not
always speak to the guilt or innocence of the defendant.” Brown, 959 So.
2d at 220 (quoting Powell, 674 So. 2d at 733). Our supreme court has
defined “true inconsistent verdicts” as “those in which an acquittal on one
count negates a necessary element for conviction on another count.” Id.
(emphasis added) (quoting Powell, 674 So. 2d at 733). I understand “an
acquittal on one count” to refer to an entire charge. The First District has
extended the definition of “true inconsistent verdicts” to include an
inconsistency between a determination of guilt as to one count and an
interrogatory response as to the same count. Gerald, 132 So. 3d at 892.
The majority in this case is now expanding the definition of a “true
inconsistent verdict” to include an inconsistency between a verdict on a
lesser-included offense on one count and a determination of guilt as to a
separate count charging a distinctly different crime. Where an entire count
serves as a predicate element for another count, logically the two counts
are legally interlocking. Where an interrogatory response is a predicate for
a determination of guilt as to the same count, logically the interrogatory
response and the determination of guilt are legally interlocking as to the
same count. However, where both the charging document and the jury
instructions describe a particular element differently, I do not agree that a
lesser-included offense to one charge is legally interlocking with a
determination of guilt as to a distinctly different crime. Thus, I respectfully
dissent.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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