               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



PATRICK GAMMAGE,                             )
                                             )
              Appellant,                     )
                                             )
v.                                           )         Case No. 2D18-2954
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed August 2, 2019.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
DeSoto County; Don T. Hall, Judge.

Robert David Malove of Law Office of
Robert David Malove, P.A., Fort
Lauderdale, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Kelly O'Neill, Assistant
Attorney General, Tampa, for Appellee.


VILLANTI, Judge.

              Patrick Gammage appeals the summary denial of his motion for

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In that

motion, Gammage raised a single claim, contending that his convictions for three counts

of attempted tampering with jurors violate double jeopardy. Because all of the actions
at issue here occurred during a single criminal episode and did not constitute distinct

acts, only one conviction was proper. Therefore, we reverse two of Gammage's three

convictions and remand for the postconviction court to resentence Gammage using a

corrected scoresheet.

              The background facts, as reflected in both the record and this court's

opinion of December 30, 2015, establish that Gammage was charged with several drug

offenses that were set for trial on October 23, 2013. On that date, Gammage gave his

girlfriend and another friend a stack of flyers to hand out to prospective jurors as they

were arriving at the DeSoto County courthouse in Arcadia for jury duty.1 The flyers

contained an Internet article about a confidential informant who had recently admitted to

lying and planting evidence to help law enforcement make arrests in DeSoto County.

While this particular confidential informant was not testifying against Gammage and

played no role in his case, another confidential informant was involved in Gammage's

case. Gammage specifically told his girlfriend that the purpose of handing out the flyers

was to influence prospective jurors concerning the credibility of testimony from any

confidential informant. Gammage's girlfriend handed out three flyers to three separate

prospective jurors during a period of about twenty minutes. She stopped at that point

because the time had passed for Gammage's trial to start. Apparently, the other friend

did not hand out any flyers.

              An off-duty police officer observed this conduct and obtained one of the

flyers from one of the prospective jurors. The officer then notified a bailiff, who in turn



              1The jury for Gammage's drug trial had not yet been selected as of the
morning of October 23. Gammage's case was scheduled for that day as what is
colloquially known as a "pick and go."


                                            -2-
notified the trial court. Gammage's trial on the drug charges was continued, and the

State filed three new charges against Gammage for tampering with jurors in violation of

section 918.12, Florida Statutes (2013).

              At Gammage's trial on the tampering charges, the evidence showed that

three prospective jurors were approached in the parking lot and on the sidewalks

leading up to the courthouse all within approximately twenty minutes of each other.

Once the time for prospective jurors to arrive at the courthouse had passed,

Gammage's girlfriend stopped attempting to hand out flyers. And after Gammage's

drug trial was continued, she did not attempt to hand out flyers again, whether after a

lunch break or on another day. Based on this evidence, the jury convicted Gammage of

all three counts of tampering with jurors, and he was sentenced to three consecutive

terms of five years in prison.

              On direct appeal, this court determined that convictions for the completed

offense were improper. Therefore, we reversed the convictions and remanded for entry

of convictions for attempted tampering with jurors. See Gammage v. State, 181 So. 3d

1256 (Fla. 2d DCA 2015). Gammage did not raise the double jeopardy issue in that

appeal.

              On remand, the trial court entered an amended judgment and resentenced

Gammage to the same sentences he had received previously. Gammage appealed his

new sentences, and this court affirmed without opinion. See Gammage v. State, 231

So. 3d 1255 (Fla. 2d DCA 2017) (table decision). Gammage did not raise the double

jeopardy issue in that appeal either.




                                           -3-
              Gammage then filed a timely rule 3.850 motion, raising as his sole issue

the argument that his three convictions for attempted tampering with jurors violated

double jeopardy because, under the "a/any" test, the statute was ambiguous and so

only one conviction was permitted for all tampering that occurred in a single criminal

episode. See Grappin v. State, 450 So. 2d 480, 482 (Fla. 1984) (explaining the "a/any"

test and noting that a statute that criminalizes the act of taking "any firearm" is

ambiguous such that only one prosecution will be permitted for all firearms taken in a

single episode). The State filed a response arguing that even if the "a/any" test limited

the number of prosecutions for all tampering in a single episode, Gammage's

convictions should be affirmed because his girlfriend's approach to each prospective

juror should be considered a separate criminal episode. The postconviction court

agreed with the State and summarily denied the motion. Gammage now appeals this

ruling.

              As an initial matter, it is settled law that a claim that a defendant's

convictions violate double jeopardy may be raised under rule 3.850, even when the

defendant could have raised the issue in a direct appeal from his judgment and

sentence. See Plowman v. State, 586 So. 2d 454, 455 (Fla. 2d DCA 1991) (citing State

v. Johnson, 483 So. 2d 420, 422 (Fla. 1986)); see also Gardner v. State, 30 So. 3d 629,

630 (Fla. 2d DCA 2010), disapproved of on other grounds by Dunbar v. State, 89 So. 3d

901, 905-07 (Fla. 2012). Hence, despite the fact that Gammage filed two earlier

appeals in which he could have raised the double jeopardy issue he now raises, the

issue is not procedurally barred and so was properly considered on its merits by the

postconviction court.




                                             -4-
               Turning to those merits, the question before this court is whether

Gammage's three convictions for attempted tampering with jurors violate double

jeopardy. To properly address this question, we must first determine, if possible, the

legislature's intent under the language of section 918.12. If the statutory language

clearly shows that the legislature intended to permit a separate prosecution for the

tampering with each individual juror, then Gammage's three convictions should be

affirmed. If, however, the statutory language is too ambiguous to permit a determination

of legislative intent, the rule of lenity would require that approaches to multiple jurors in

a single criminal episode be punished only once. And if that is the case, we must next

determine whether Gammage's girlfriend's acts occurred during a single criminal

episode. If so, we must then determine whether her acts constituted "distinct acts"

during the course of that single episode. If the convictions all arose during a single

criminal episode and if they are not predicated on distinct acts, two of Gammage's three

convictions must be reversed. See, e.g., Partch v. State, 43 So. 3d 758, 760 (Fla. 1st

DCA 2010) ("[I]n order to determine if appellant's convictions violate double jeopardy,

we must first ascertain if the charges were based on an act or acts which occurred

within the same criminal transaction and/or episode. If the charge did occur during the

same transaction or episode, we must then determine if the convictions were predicated

on distinct acts.").




                                             -5-
1.            Unit of Prosecution

              As mentioned above, our first task is to determine whether the language of

section 918.12 allows us to determine the applicable unit of prosecution intended by the

legislature. Essentially, we must try to determine whether the legislature intended for a

defendant to be separately prosecuted for tampering with each individual juror or

whether tampering with any juror—whether it be one or more—constitutes the

completed offense such that only one offense occurs whether the defendant tampers

with, e.g., one, two, five, or ten individual jurors in a single episode.

              The parties focused their arguments on this issue on the "a/any" test first

set out in Grappin. This court has explained the "a/any" test as follows:

              "When the article 'a' is used by the [l]egislature in the text of
              the statute, the intent of the [l]egislature is clear that each
              discrete act constitutes an allowable unit of prosecution."
              McKnight [v. State], 906 So. 2d [368] at 371 [(Fla. 5th DCA
              2005)]. On the other hand, "[u]se of the adjective 'any'
              indicates an ambiguity that may require application of the
              rule of lenity." Id. at 372.

Edwards v. State, 268 So. 3d 849, 852 (Fla. 2d DCA 2019) (alterations in original).

However, the "a/any" test is not a definitive test in and of itself. Instead, as the supreme

court has explained:

                      Our purpose in construing a statutory provision is to
              give effect to legislative intent. Legislative intent is the
              polestar that guides a court's statutory construction analysis.
              State v. J.M., 824 So. 2d 105, 109 (Fla. 2002). In attempting
              to discern legislative intent, we first look to the actual
              language used in the statute. Joshua v. City of Gainesville,
              768 So. 2d 432, 435 (Fla. 2000). If the statutory language is
              unclear, we apply rules of statutory construction and explore
              legislative history to determine legislative intent. Id.; Weber
              v. Dobbins, 616 So. 2d 956, 958 (Fla. 1993). "To discern
              legislative intent, courts must consider the statute as a
              whole, including the evil to be corrected, the language, title,



                                             -6-
              and history of its enactment, and the state of law already in
              existence on the statute." State v. Anderson, 764 So. 2d
              848, 849 (Fla. 3d DCA 2000) (citing McKibben v. Mallory,
              293 So. 2d 48, 52 (Fla. 1974)).

Bautista v. State, 863 So. 2d 1180, 1185-86 (Fla. 2003). Hence, the "a/any" test is

simply one "valid linguistic tool that is helpful in establishing the Legislature's intended

unit of prosecution." Id. at 1188. Ultimately, the court must consider the "a/any" test

together with the other rules of statutory construction, and if it nevertheless cannot

determine the meaning of the statute from its wording or legislative history, then the

statute must be construed in favor of the defendant. Id. at 1185 (citing Wallace v. State,

724 So. 2d 1176 (Fla. 1998), and Ladner v. United States, 358 U.S. 169 (1958)). And in

the case of multiple convictions under the same statute, construing the statute in favor

of the defendant means that only one conviction can stand. "If there is ambiguity [in the

language of the statute], . . . the rule of lenity applies to resolve the ambiguity against

turning a single transaction into multiple offenses." Id. at 1183.

              In this case, looking first at the language of the statute, it provides:

              918.12—Tampering with jurors. Any person who
              influences the judgment or decision of any grand or petit
              juror on any matter, question, cause, or proceeding which
              may be pending, or which may by law be brought, before
              him or her as such juror, with intent to obstruct the
              administration of justice, shall be guilty of a felony of the third
              degree, punishable as provided in s. 775.082, s. 775.083, or
              s. 775.084.

§ 918.12 (emphasis added.) Under the "a/any" test as set out by Grappin and

explained in Bautista and Wallace, because the statute refers to influencing the

judgment of "any . . . juror," the statute is ambiguous, and this ambiguity must be

resolved in favor of the defendant. Therefore, applying the "a/any" test to the statutory




                                             -7-
language at issue here, Gammage could be prosecuted only once regardless of the

number of jurors with whom he attempted to tamper during a single criminal episode.

              In its brief in this appeal, the State contends that the subsequent language

in the statute referring to a case pending "before him or her as such juror" clarifies the

legislature's intent and demonstrates that the legislature intended that tampering with

each individual juror constitute a separate offense. However, as Gammage points out

in his reply brief, the title of the statute is "tampering with jurors." Had the legislature

intended to permit a prosecution for each individual juror, it would have titled the offense

"tampering with a juror." These discrepancies in the language throughout this relatively

short statute tend only to muddy the underlying intent. The statute's title referring to

"jurors" and its language regarding influencing "any juror" logically seem to indicate that

only one prosecution is permissible regardless of the number of jurors involved, while

the language regarding a case pending before "him or her as such juror" conversely

seems to indicate that the State may separately prosecute a defendant for each

individual juror with whom he has tampered. Because the statutory language raises

more questions than it answers about what the legislature actually intended, the rule of

lenity requires this court to interpret the statute in a manner most beneficial to the

defendant. And, in this context, interpreting the statute in the manner most beneficial to

Gammage precludes turning a single act into multiple convictions.

              Moreover, the language in the statute describing its intent also tends to

support a determination that the legislature intended only one prosecution regardless of

the number of jurors involved. The mens rea component of the statute provides that its

intent is to prevent obstruction of the administration of justice. This can be




                                             -8-
accomplished by a defendant whether he or she tampers with one juror or multiple

jurors. Hence, this portion of the statutory language also tends to support a conclusion

that a defendant commits only one offense regardless of the number of jurors tampered

with during a single criminal episode.

              Finally, section 918.12 was last amended in 1997, thirteen years after the

supreme court set forth the "a/any" test in Grappin, see ch. 97-102, § 1540, Laws of

Fla.; yet the legislature did not clarify this language in response to the Grappin decision,

nor has it taken any steps to do so since. The supreme court has held that "[t]he

Legislature is presumed to know the judicial constructions of a law when amending that

law, and the Legislature is presumed to have adopted prior judicial constructions of a

law unless a contrary intention is expressed." Zommer v. State, 31 So. 3d 733, 754

(Fla. 2010) (alteration in original) (quoting Fla. Dep't of Children & Families v. F.L.,

880 So. 2d 602, 609 (Fla. 2004)). While the courts have not specifically construed the

tampering statute under the "a/any" test, courts have done so with multiple other

statutes. Nevertheless, the legislature has not taken any steps to amend the tampering

statute, even with the presumed knowledge that it would be subject to judicial

construction under the "a/any" test. Since the legislature has not amended section

918.12 in the twenty-five years since the Grappin decision issued, it can be safely

presumed that the legislature agrees with the court's application of the "a/any" test and

understands and accepts the interpretation of the tampering statute that will result from

its application. And as noted, this application results in a determination that only one

offense occurs regardless of the number of jurors tampered with in a single criminal

episode.




                                             -9-
              Hence, because the conflicts in the statutory language render it

ambiguous as to the intended unit of prosecution, the rule of lenity requires this court to

conclude that only one prosecution will be permitted regardless of the number of jurors

tampered with in a single criminal episode. Therefore, we must next consider whether

Gammage's girlfriend's approach to each prospective juror constituted a separate

criminal episode and, if so, whether each approach constituted a distinct act that would

permit multiple punishments.

2.            Separate Criminal Episodes

                     The Fifth Amendment guarantee against double
              jeopardy consists of three separate constitutional
              protections: "It protects against a second prosecution for the
              same offense after acquittal. It protects against a second
              prosecution for the same offense after conviction. And it
              protects against multiple punishments for the same offense."

State v. Paul, 934 So. 2d 1167, 1171 (Fla. 2006) (footnote omitted) (quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama

v. Smith, 490 U.S. 794 (1989)), receded from on other grounds by Valdes v. State,

3 So. 3d 1067 (Fla. 2009). As to the third of these protections, double jeopardy bars

multiple convictions for multiple crimes only if those crimes occur during a single

criminal episode. Id. at 1172. "In order to determine whether offenses occurred during

a single criminal episode, courts look to whether there are multiple victims, whether the

offenses occurred in multiple locations, and whether there has been a 'temporal break'

between offenses." Id. at 1172-73 (quoting Murray v. State, 890 So. 2d 451, 453 (Fla.

2d DCA 2004)); see also Cabrera v. State, 884 So. 2d 482, 484 (Fla. 5th DCA 2004)

(holding that for crimes to be considered to have occurred in more than one criminal

episode, there must be a sufficient temporal break between the two acts to allow the



                                           - 10 -
defendant to form a new criminal intent for each offense); Williams v. State, 804 So. 2d

572, 574 (Fla. 5th DCA 2002); Smith v. State, 650 So. 2d 689, 691 (Fla. 3d DCA 1995).

When the facts underlying the determination of whether double jeopardy has been

violated are undisputed, the determination of whether a violation has occurred is a legal

one that is reviewed de novo. See Paul, 934 So. 2d at 1171 (citing State v. Florida, 894

So. 2d 941, 945 (Fla. 2005)).

             Here, the facts underlying the determination are undisputed. The

attachments to the postconviction court's order show that Gammage's girlfriend handed

out three flyers during an approximately twenty-minute period—two in the parking lot

north of the courthouse and one on the east sidewalk leading to the courthouse. All of

these acts occurred in an area smaller than one city block, and there was no temporal

break between the acts other than what was necessary to approach the various

individuals as they approached the courthouse. There were no intervening acts. There

was no change in location. And there is nothing in the record to show that a new

criminal intent was formed. Instead, the testimony attached to the postconviction court's

order shows but a single intent, i.e., to approach as many prospective jurors as possible

before Gammage's drug trial started and hand each of them a flyer. Hence, the facts as

found by the postconviction court establish that there was but a single criminal episode.

             The State contends that because Gammage's girlfriend approached the

prospective jurors at three separate locations on the courthouse grounds, the events

constituted separate criminal episodes and so multiple punishments are permissible.

The State cites to Nicholson v. State, 757 So. 2d 1227 (Fla. 4th DCA 2000), in support

of its position. In Nicholson, the defendant was charged with two counts of throwing any




                                          - 11 -
missile into a dwelling in violation of section 790.19, Florida Statutes, after he threw one

brick through the back window of the victim's home and then ran to the other side of the

house and threw another brick through another window. Id. at 1228. In affirming the

two convictions, the court concluded that because "[t]he bricks were thrown at discrete

times and from discrete locations[, i]t clearly required separate intent to throw a brick

through the patio door at the rear of the house and then, after running to the front of the

house, to throw a brick through a front window." Id. Hence, the court affirmed the dual

convictions.2 Id.

              While that case is instructive, Gammage's case is more akin to the

situation in Wallace. There, Wallace was convicted of two counts of resisting an officer

with violence, along with numerous other offenses, after an altercation between him and

two police officers who were trying to arrest him. 724 So. 2d at 1177. On appeal,

Wallace alleged that the two resisting convictions were improper because the evidence

showed only one continuous resistance of the attempted arrest in a single episode. Id.

In rejecting the State's argument that the resistance against each officer constituted a

separate episode, the supreme court explained:

              We note that if multiple prosecutions were allowed, a
              defendant could be prosecuted for numerous other charges
              such as aggravated assault and aggravated battery upon a
              police officer as was Wallace here, in addition to an endless
              number of counts of resisting simply depending upon the
              number of officers present. We do not believe the legislature


              2Nicholson  also challenged his convictions based on the statutory
language criminalizing the act of throwing "any" missile into a dwelling, contending that
there should be only one prosecution under the "a/any" test. Nicholson, 757 So. 2d at
1228. However, the appellate court did not decide the issue on that basis, holding that
"[t]he 'any/a' dichotomy need not concern us here, as the two acts were clearly separate
in both time and space such as to be properly considered as two separate offenses."
Id.


                                           - 12 -
              intended such consequences. While the defendant may
              have committed more than one offense in his altercation with
              the officers, including possibly multiple assaults or batteries,
              or both, on law enforcement officers as were separately
              charged here, we conclude that his continuous resistance to
              the ongoing attempt to effect his arrest constitutes a single
              instance of obstruction . . . .

Id. at 1180-81 (emphasis added).

              Here, as in Wallace, the record shows that Gammage's girlfriend's act of

handing out flyers was one continuous episode in which she attempted to influence any

and all of the prospective jurors who arrived at the courthouse that morning. Just as

Wallace had a single impulse to resist arrest regardless of the number of officers

attempting that arrest, Gammage's girlfriend had a single impulse to influence

prospective jurors regardless of the actual number of prospective jurors contacted. To

hold that Gammage was subject to prosecution based on each individual prospective

juror who was handed a flyer would pose the problem that he could be subjected to an

endless number of counts of attempted tampering based on the number of prospective

jurors who happened to be intercepted by his girlfriend. Such a holding would set the

punishment based on the expediency of the number of prospective jurors arriving during

a specific period rather than on the criminal impulse. Therefore, the facts support a

conclusion that this was a single criminal episode for purposes of double jeopardy.

3.            Distinct Acts

              Having determined that all of Gammage's girlfriend's acts occurred during

a single criminal episode, we must still consider whether her acts constituted "distinct

acts." See State v. Drawdy, 136 So. 3d 1209, 1213 (Fla. 2014) (holding that if multiple

offenses occur within the same criminal episode, "double jeopardy is not implicated




                                           - 13 -
where each offense is a 'distinct criminal act' "); see also Paul, 934 So. 2d at 1172 n.3

("Of course, if two convictions occurred based on two distinct criminal acts, double

jeopardy is not a concern."); Partch, 43 So. 3d at 760 (considering an allegation of a

double jeopardy violation and stating that "[i]f the charge did occur during the same

transaction or episode, we must then determine if the convictions were predicated on

distinct acts"). This analysis is particularly pertinent when the defendant is charged

multiple times under the same statute. As the supreme court has held,

              Blockburger [v. United States, 284 U.S. 299 (1932)]
              ultimately provides courts with two tests to apply: (1) where
              the defendant is convicted multiple times under the same
              statute for acts that occurred during the course of a single
              criminal episode, a "distinct acts" test is used, but (2) where
              a defendant is convicted under multiple statutes for one act,
              the "different elements" test applies.

Graham v. State, 207 So. 3d 135, 141 (Fla. 2016) (emphasis added). And as this court

recently explained,

              Pursuant to the "distinct acts" test, a single criminal impulse
              may be punished only once "no matter how long the action
              may continue," while separate, successive impulses may be
              punished separately "even though all unite in swelling a
              common stream of action." Graham, 207 So. 3d at 139
              (quoting Blockburger, 284 U.S. at 302). In determining
              whether acts are "distinct," courts consider "factors such as
              whether there was (1) a temporal break between the acts,
              (2) intervening acts, (3) a change in location between the
              acts; and/or (4) a new criminal intent formed." Partch v.
              State, 43 So. 3d 758, 761 (Fla. 1st DCA 2010) (citing Hayes
              v. State, 803 So. 2d 695, 700 (Fla. 2001)).

Jacobs v. State, 272 So. 3d 838, 841 (Fla. 2d DCA 2019).

              As can be readily seen, the "distinct acts" test requires consideration of

the same elements that are considered when determining whether the defendant's

actions arose from a single criminal episode. And, as discussed above, here those



                                           - 14 -
elements show that Gammage's girlfriend's actions were not "distinct acts" but rather

were part of a single "common stream of action" for which Gammage could only be

punished once. Therefore, double jeopardy precluded prosecuting Gammage for

multiple attempts at tampering with jurors that occurred during a single criminal episode

because those acts did not constitute distinct criminal acts. Hence, the multiple

convictions violate double jeopardy.

4.            Conclusion

              In sum, to hold that Gammage was subject to prosecution for each

individual flyer based on an intended attempt to effect but one trial, occurring on the

same time and space, under the statutory use, linguistically, of the word "any," would

run afoul of double jeopardy. Because the ambiguity in the statutory language requires

us to apply the rule of lenity and because Gammage's girlfriend's actions toward the

prospective jurors occurred during a single criminal episode but did not constitute

"distinct criminal acts," two of Gammage's three convictions for attempted tampering

with jurors must be reversed as violative of double jeopardy. On remand, the trial court

must resentence him using a corrected scoresheet.

              Reversed and remanded for further proceedings.


SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                           - 15 -
