          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                             MICHEL CHERFRERE,
                                  Appellant,

                                         v.

                              STATE OF FLORIDA,
                                   Appellee.

                                  No. 4D13-4071

                                  [July 17, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 11-
012613CF10A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Appellant, Michel Cherfrere, appeals his convictions and sentence,
contending the trial court erred by: (1) allowing the jury to deliberate on
two separate acts of attempted first-degree murder, after he was charged
with only one count for the offense; (2) failing to hold a proper Nelson 1
hearing; (3) failing to hold the necessary competency hearing and make an
independent determination of Appellant’s competency; (4) considering
Appellant’s lack of remorse during sentencing; (5) failing to grant a mistrial
after a law enforcement officer gave an opinion when there was no accident
investigation; and (6) allowing Appellant to represent himself during part
of the trial. We affirm as to all issues raised. We choose to write only on
Issue 1, explaining our reasoning.




1   Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
                                Background

   This appeal arises out of Appellant’s third trial on the charges in this
case. The first two trials resulted in mistrials.

    The information charged Appellant with attempted first-degree murder,
aggravated child abuse, and child abuse. In its opening statement, the
State explained that the evidence would show that Appellant tried to
murder the victim, his wife, after she moved out and ended their
relationship. According to the State, the night before the incident, the wife
had gone back to Appellant’s house to get some of her belongings, and she
brought some people and the police with her to keep the peace as she
removed her belongings. Appellant was very upset about the wife’s
actions. Appellant vented his anger the next morning, while the wife and
her daughter sat in her SUV at the child’s bus stop waiting for the school
bus. Appellant rammed his truck into the driver’s side of the wife’s SUV,
tried to push her vehicle farther with his truck after the initial impact, and
then got out and started hitting her vehicle with a machete. When the wife
fled from her SUV, Appellant chased and stabbed the wife and attacked
her daughter as she tried to shield her mother.

   The State presented the testimony of neighbors who witnessed the
incident and called 911. Witnesses testified to hearing Appellant’s truck
accelerating from up the street before hearing the crash as he collided with
the driver’s side of the wife’s SUV, which had been waiting at the curb
where they had seen it every morning waiting for the school bus. Witness
testimony corroborated that Appellant tried to push the SUV a little farther
by ramming it once again with his truck after the initial impact. Witnesses
testified that Appellant then exited his truck with a machete and began
chopping at the wife’s SUV. When the wife ran out of the SUV, witnesses
testified she screamed for help as Appellant chased her. According to the
witnesses, Appellant eventually got on top of the wife on the ground, with
her daughter in between them. At that time, Appellant was making
jabbing or stabbing motions towards the wife with a big knife in his hand
and the wife was covered in blood. Witnesses testified the daughter was
trying to shield her mother and that she was covered in blood as well. The
witnesses testified that they did not see the wife attack or chase Appellant
at any time. They testified that Appellant went back to his truck and
grabbed a bottle of liquor and started drinking, and then pursued the wife
and daughter again, but neighbors intervened and an ambulance and
police arrived.

  The wife also testified to the entire incident, and further testified that
while Appellant was stabbing her repeatedly, he kept saying, “I’m going to


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kill you.” She also testified that she eventually grabbed the sharp end of
the knife Appellant was holding while he was on top of her, cutting her
finger, but that she managed to take the knife from Appellant, after which
Appellant bit her, attempted to choke her, and punched her before going
back to his truck.

    The defense theory of the case was one of self-defense. The defense
asserted the wife was angry that she had been unable to get a restraining
order on Appellant that would force him out of the house so she could
remain in the house herself. Appellant testified that on the morning of the
incident, the wife came back into Appellant’s house and attacked him with
a kitchen knife and that Appellant fled in his truck. Appellant asserted
that the wife pursued him in her SUV, and that when he tried to make a
U-turn, he accidentally hit her SUV. Appellant testified that the wife was
armed with a steak knife and chased Appellant, so he armed himself with
a machete in self-defense. Despite the evidence introduced showing the
multiple lacerations the wife suffered from the incident, Appellant denied
stabbing her or ever taking the knife from her, asserting she had the knife
the whole time, and testified he did not know how the wife got her wounds.
Notably, witnesses testified that Appellant did not appear to be injured at
all, but rather, that he was the one chasing the wife and attacking her.

   In closing argument, the State explained to the jury that it had to prove
that Appellant did some act intended to cause the wife’s death, and argued
that Appellant had done such an act:

      STATE: Well, he did do some act. He did crashing [sic] into her
      car, which was his first attempt to try to kill her, right into the
      driver’s side of her car, and then getting out, chasing her down
      with a knife, and stabbing her multiple times.

No objection was made to this statement.

   Ultimately, the jury found Appellant guilty as charged on all counts.
The trial court adjudicated Appellant guilty and sentenced him to life
imprisonment for the attempted first-degree murder, to a consecutive
thirty years for the aggravated child abuse, and to five years for child
abuse, to run concurrently with the aggravated child abuse. Thereafter,
Appellant gave notice of appeal.

                             Appellate Analysis

  In Count I of the information, Appellant was charged with attempted
murder as follows:


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      [O]n the 13th day of October, 2008, in the County and State
      aforesaid, from a premeditated design to effect the death of
      [the wife], a human being, did attempt to unlawfully kill [the
      wife], and during the commission thereof used, displayed,
      threatened to use, or attempted to use a weapon, to-wit: a
      knife and/or a motor vehicle, and in the furtherance of said
      attempt did repeatedly stab [the wife], and/or did intentionally
      drive a motor vehicle into the driver’s side of a motor vehicle
      being operated by [the wife], contrary to F.S. 782.04(1)(a) and
      F.S. 777.04(1) and F.S. 775.087(1).

(emphases added).      The record does not reflect any objections to the
information.

   On appeal, Appellant argues that the trial court erred in allowing the
jury to deliberate on two separate acts of attempted murder (the act of
ramming his truck into the wife’s occupied SUV and the act of chasing and
repeatedly stabbing the wife), where he was only charged with the one
count of attempted murder. Appellant maintains his conduct, as asserted
by the State from the evidence, constituted two separate acts which
occurred in different locations, at different times, and used different
weapons, and that this was not a case where one incident occurred.
Appellant argues additionally that the State compounded the error by
arguing that either act could be used in determining his guilt. Thus,
Appellant contends that the State prosecuted him for two crimes in one
count of the information, resulting in the possibility of a non-unanimous
verdict.

    Because this argument is being made for the first time on appeal, the
issue is reviewed for fundamental error. State v. Kettell, 980 So. 2d 1061,
1068 (Fla. 2008) (citing Castor v. State, 365 So. 2d 701, 703 (Fla. 1978))
(“[U]npreserved claims of error cannot be raised on appeal absent
fundamental error.”). “Fundamental error is error that ‘reaches down into
the validity of the trial itself to the extent that a verdict of guilty could not
have been obtained without the assistance of the alleged error.’” Krause
v. State, 98 So. 3d 71, 73 (Fla. 4th DCA 2012) (quoting Bassallo v. State,
46 So. 3d 1205, 1209 (Fla. 4th DCA 2010)).

   Appellant correctly points out that a jury’s verdict must be unanimous
to at least one specific act.

      “As a state constitutional matter, a criminal conviction
      requires a unanimous verdict in Florida . . . . Where a single
      count embraces two or more separate offenses, albeit in


                                       4
      violation of the same statute, the jury cannot convict unless
      its verdict is unanimous as to at least one specific act.”

Saldana v. State, 980 So. 2d 1220, 1222 (Fla. 2d DCA 2008) (alteration in
original) (quoting Perley v. State, 947 So. 2d 672, 675 (Fla. 4th DCA 2007)).
Relying on Perley, Appellant contends that permitting the State to charge
him with two separate and distinct acts in one count of the information
and to argue both acts as fulfilling its burden of proof precludes any
assurance of a unanimous verdict as required. In this regard, he argues
that “[i]t is quite possible that some jurors voted guilty based on the
automobile incident and some jurors voted guilty based on the stabbing
incident.”

    Appellant’s reliance on Perley is misplaced. In Perley, we reasoned that
fundamental error occurred when the state charged Perley with one count
of escape but presented evidence of two entirely separate incidents of
escape (once at the time of his arrest, and once later from the hospital
where he was taken after complaining of chest pains), and informed the
jury it could convict for either one, thus making it unclear whether the
jury’s verdict was unanimous. Id. at 674-75. We instructed that “[w]here
it is reasonable and possible to distinguish between specific incidents or
occurrences . . . then each should be contained in a separate count of the
accusatory document.” Id. at 675 (alteration in original) (quoting State v.
Dell’Orfano, 651 So. 2d 1213, 1216 (Fla. 4th DCA 1995)). We also clarified
that “[w]hile the presentation of dual theories of a crime is allowable, this
occurs when a defendant is charged with the commission of one crime,
and the State presents two scenarios or bases supporting the commission
of the crime.” Id. at 674.

    In the instant case, the State correctly argues that the way in which it
charged Appellant was not improper. See Fla. R. Crim. P. 3.140(k)(5)
(“Alternative or Disjunctive Allegations. For an offense that may be
committed by doing 1 or more of several acts, or by 1 or more of several
means, or with 1 or more of several intents or results, it is permissible to
allege in the disjunctive or alternative such acts, means, intents, or
results.”). Furthermore, we agree with the State that Appellant incorrectly
contends that his ramming of the victim’s car and his stabbing the victim
are “two entirely separate incidents.” Instead, we agree that Appellant’s
actions in this case were committed during a single criminal episode.
Moreover, as we have previously explained:

      “Whether the two offenses were committed during a single
      criminal episode is a question of fact.” Williams v. State, 804
      So.2d 572, 574 (Fla. 5th DCA 2002). In resolving this question

                                     5
      of fact, the courts “generally consider[ ] factors such as the
      nature, time, place and number of victims.” Wilcher, 787
      So.2d 150, 151 (Fla. 4th DCA 2001) (quoting Smith v. State,
      650 So.2d 689, 691 (Fla. 3d DCA 1995)).

Roberts v. State, 990 So. 2d 671, 675 (Fla. 4th DCA 2008).

   We agree with the State’s argument that the evidence in this case
pertaining to the attempted murder charge was that Appellant attacked
the same victim, in the same neighborhood, within a span of minutes. The
State’s evidence showed that Appellant attacked the victim by intentionally
crashing into her vehicle, trying to push her vehicle farther with his vehicle
after the initial impact, got out of his vehicle when he could not push her
vehicle any farther, and with a machete, slashed at her vehicle, causing
the victim to flee from the vehicle. As she fled, Appellant chased her and
stabbed her with a knife or machete. Despite Appellant’s assertion that
the State told the jury it could convict on either the ramming incident or
the stabbing, this is not what the prosecutor said. Although the State
noted either the ramming or the stabbing could satisfy the act element of
the crime, the State explained the event as one continuous episode.

    The State further argues that Appellant would have likely raised a
double jeopardy or merger challenge if the State had charged him with two
counts of attempted murder. See Wilkes v. State, 123 So. 3d 632, 635
(Fla. 4th DCA 2013) (explaining “[O]nly one homicide conviction and
sentence may be imposed for a single death,” quoting Houser v. State, 474
So. 2d 1193, 1196 (Fla. 1985), and applying that “principle . . . . to
convictions for attempted murder and attempted felony murder from the
same attempted killing.”); Williams v. State, 90 So. 3d 931, 935 (Fla. 1st
DCA 2012) (reasoning that “where [the defendant’s] pursuit of the victim
constituted one criminal act or one attempted murder, we hold that
although [the defendant’s] dual convictions for attempted premeditated
first-degree murder and attempted felony murder do not violate double
jeopardy under the standard double jeopardy analysis, they are
impermissible under the principle of merger”). The State contends it is not
reasonable and possible in this case to distinguish between specific
incidents or occurrences such that would have required it to charge
Appellant in separate counts. See State v. Dell’Orfano, 651 So. 2d at 1216.
We agree. Finally, we agree with the State that the other cases relied upon
by Appellant are inapposite to the facts of this case.

   Having concluded that the charging document in this case was proper
and the State’s arguments to the jury were proper, we determine there was
no error, fundamental or otherwise, resulting in a non-unanimous verdict.

                                      6
We affirm Appellant’s conviction and sentence for attempted murder, as
well as the other charges.

  Affirmed.

WARNER and CIKLIN, JJ., concur.

                          *       *        *

  Not final until disposition of timely filed motion for rehearing.




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