          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-555
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TREVOR AMOS BROWN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

                           July 9, 2018


WETHERELL, J.

     Trevor Amos Brown appeals his conviction for use of a firearm
during the commission of a felony in violation of section 790.07(2),
Florida Statutes (2015). He argues that the trial court should have
dismissed the charge pursuant to his motion under Florida Rule of
Criminal Procedure 3.151(c). We agree and reverse.

                                 I

     This case stems from a drug deal gone bad. It is undisputed
that Brown went to the victim’s house to buy marijuana and that
he shot the victim. However, the circumstances of the shooting
were disputed. Brown claimed that he shot the victim in self-
defense after the victim and another man attacked him and tried
to rob him of the money that he brought to buy the marijuana. By
contrast, the victim claimed that Brown shot him during the foot
chase that ensued after Brown took the satchel containing the
marijuana without paying.

     Brown was arrested for (1) armed robbery, (2) aggravated
battery with a firearm, and (3) use of a firearm during the
commission of a felony, but he was only charged with the first two
offenses. Brown was not charged with the third offense because,
according to the “No Prosecution with Charges” document filed by
the prosecutor contemporaneously with the original information,
that offense was “combined in counts 1 and 2.” The case proceeded
to trial at which the jury found Brown not guilty of armed robbery
(and its lesser included offenses) and deadlocked on aggravated
battery.

     Shortly after the first trial, the State filed a second 1 amended
information (re)charging Brown with aggravated battery with a
firearm and adding a new charge of use of a firearm during the
commission of a felony. The underlying felony for the latter charge
was the attempted purchase of “20g or more” of marijuana, not the
robbery or the aggravated battery. 2

    Brown filed a motion to dismiss the use-of-a-firearm count
pursuant to rule 3.151(c) because that charge stemmed from the
same criminal episode as the armed robbery charge for which he
was acquitted in the first trial. The trial court denied the motion
and the case proceeded to trial.

     At the second trial, the jury found Brown guilty on the use-of-
a-firearm count and deadlocked (again) on the aggravated battery
count. The trial court adjudicated Brown guilty of use of a firearm

    1  An amended information was filed prior to the first trial, but
like the original information, it only charged Brown with armed
robbery and aggravated battery with a firearm.
    2 The record does not explain why the drug transaction was
not used as the underlying felony from the outset. However, the
“No Prosecution with Charges” document implies that the
prosecutor originally considered only the armed robbery or the
aggravated battery to be the underlying felony.

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during the commission of a felony and sentenced him to two years
of community control followed by three years of probation. The
State nol prossed the aggravated battery count.

    This appeal followed.

                                 II

     We review de novo Brown’s claim that he was entitled to
dismissal of the use-of-a-firearm count under rule 3.151(c). See
O’Leary v. State, 109 So. 3d 874, 876 (Fla. 1st DCA 2013) (“We
review a trial court’s denial of a motion to dismiss under a de novo
standard of review.”).

    Rule 3.151(c) provides:

    (c) Dismissal of Related Offenses After Trial. When
    a defendant has been tried on a charge of one of two or
    more related offenses, the charge of every other related
    offense shall be dismissed on the defendant’s motion
    unless [1] a motion by the defendant for consolidation of
    the charges has been previously denied, or [2] unless the
    defendant has waived the right to consolidation, or [3]
    unless the prosecution has been unable, by due diligence,
    to obtain sufficient evidence to warrant charging the
    other offense or offenses.

     The rule is intended to “protect defendants from successive
prosecutions based upon essentially the same conduct.” Franklin
v. State, 719 So. 2d 938, 940 (Fla. 1st DCA 1998); see also Dixon v.
State, 486 So. 2d 67, 69 (Fla. 4th DCA 1986) (“The purpose behind
rule 3.151(c) is to allow the defendant a means to protect himself
(by motion to dismiss) from multiple trials on charges of related
offenses when he has already suffered a prior trial on a related
offense.”). Offenses are “related” for purposes of the rule “if they
are triable in the same court and are based on the same act or
transaction or on 2 or more connected acts or transactions.” Fla.
R. Crim. P. 3.151(a). “The state can establish the necessary
connection by demonstrating (1) an uninterrupted crime spree or
(2) a causal link irrespective of the passage of time.” Lindsey v.
State, 220 So. 3d 1255, 1257 (Fla. 1st DCA 2017); see also Paul v.
State, 385 So. 2d 1371, 1372 (Fla. 1980) (adopting Judge Smith’s

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dissent in Paul v. State, 365 So. 2d 1063 (Fla. 1st DCA 1979), which
explained that rule 3.151 “refer[s] to ‘connected acts or
transactions’ in an episodic sense” rather than charges that “are
‘connected’ only by similar circumstances and the accused’s alleged
guilt in both or all instances”); State v. Varnum, 991 So. 2d 918,
920 (Fla. 4th DCA 2008) (“Dismissal under Rule 3.151(c) . . . is
required only where the offenses arise out of a single criminal
episode.”).

     Here, as the prosecutor conceded at the hearing on the
defendant’s motion to dismiss, 3 the use-of-a-firearm count is
“related” to the offenses that were the subject of the first trial
because the offenses were inextricably intertwined and occurred
during a single ten-minute criminal episode—the drug deal gone
bad. The offenses could have been prosecuted in the same court,
and none of the exceptions in rule 3.151(c) are present because
Brown did not file a previous motion for consolidation, he did not
waive his right to consolidation, and there is no showing that the
prosecution was unable, by due diligence, to obtain sufficient
evidence to charge the use-of-a-firearm offense at the outset. Thus,
like Franklin, supra, this case fits squarely under rule 3.151(c).

     Indeed, the circumstances of this case are materially
indistinguishable from Franklin. There, as here, the defendant
was charged with two offenses (DUI manslaughter and leaving the
scene of an accident involving death) arising out of a single
incident (a car accident); the defendant was acquitted on one of the
counts (leaving the scene of an accident) and the jury deadlocked
on the other count (DUI manslaughter); the defendant was
subsequently recharged with the offense on which the jury
deadlocked and he was also charged with a new offense stemming
from the same incident (leaving the scene of an accident involving
injury); and, after the defendant’s motion to dismiss the new
charge pursuant to rule 3.151(c) was denied, the defendant was
convicted of the new charge. Franklin, 719 So. 2d at 939. On
appeal, we reversed the defendant’s conviction, explaining:


    3The prosecutor stated: “Of course, it’s related. We could not
bring in another charge for something that’s completely
unrelated.”

                                 4
    This case fits squarely under rule 3.151(c). . . . . There
    can be no argument that the charges are not ‘related
    offenses,’ because they arise from the same automobile
    accident and could be tried in the same court. See Fla.
    R.Crim. P. 3.151(a). Moreover, it is undisputed that
    appellant did not file a previous motion for consolidation;
    nor did he waive his right to consolidation, and there is
    no showing that the prosecution was unable, by due
    diligence, to obtain sufficient evidence to warrant
    charging the other offense. See Fla. R.Crim. P. 3.151(c).
    Finally, although a mistrial was declared on the DUI
    manslaughter charge, appellant was nonetheless tried
    and acquitted on the leaving-the-scene charge; therefore,
    he was tried on a charge of one related offense. Id. Under
    the circumstances, the trial court erred in denying
    appellant's motion to dismiss under rule 3.151(c), and the
    conviction for leaving the scene must be reversed.

Id. at 940; see also Fields v. State, 743 So. 2d 92 (Fla. 5th DCA
1999) (relying on Franklin to reverse conviction for carrying a
concealed firearm charge that was based on the same incident for
which the defendant was acquitted of assault or battery while
armed). Accordingly, Franklin compels reversal of Brown’s use-of-
a-firearm conviction.

     We have not overlooked the Varnum case relied on by the
State, but we find that case distinguishable. The offenses at issue
in Varnum arose out of entirely different real estate transactions
that occurred over the course of a two-year period and involved
different alleged victims. See 991 So. 2d at 919–20. The court held
that the offenses were not “related” to the offenses for which the
defendant was previously tried and acquitted because the offenses
were committed in a different manner and arose out “temporally
separate episode[s]” that were only connected by “similar
circumstances and [the defendant]’s alleged guilt in all instances.”
Id. at 921. By contrast, here, the use-of-a-firearm count arose out
of the exact same criminal episode as the robbery for which Brown
was previously tried and acquitted.

                                III


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    In sum, because the use-of-a-firearm charge was “related” to
the robbery offense for which Brown was previously tried and
acquitted, the trial court erred in denying Brown’s motion to
dismiss that charge pursuant to rule 3.151(c). Accordingly, we
reverse Brown’s conviction and remand for entry of an order
dismissing the use-of-a-firearm charge.

    REVERSED and REMANDED with instructions.

RAY and OSTERHAUS, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Kevin Steiger, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon S. Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




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