         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1350
                 _____________________________

DEMEKO LADJUAN SIMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
W. Joel Boles, Judge.

                       December 10, 2018


WINSOR, J.

     Demeko Ladjuan Sims was convicted of armed robbery and
petit theft, and he received a life sentence as a Prison Releasee
Reoffender. See § 775.082(9), Fla. Stat. Sims now appeals, raising
an evidentiary issue, alleging ineffective assistance of counsel,
claiming a double-jeopardy violation, and challenging the
constitutionality of his sentence. We affirm.

                                I.

    There was a robbery at a Pensacola Quick Mart store. Two
masked men entered the store, pointed guns at two clerks, and
took one clerk’s phone and wallet, along with $700. Store cameras
captured video and still photos of the robbery.
     Police suspected Sims and another man were involved in a
series of armed robberies, including this one. The other man,
Joseph Vaughn, was Sims’s roommate, and his truck had been
under surveillance for a while. About a week after the robbery,
officers pulled over Vaughn’s truck, found Vaughn and Sims
inside, and arrested them both.

     In a subsequent interview, Sims initially denied participating
in the robbery. But he finally confessed after officers confronted
him with surveillance photos showing distinctive markings on the
masked robber’s pants. Sims ultimately admitted that he and
Vaughn had robbed the store using two revolvers, one black and
one silver. Following the confession, officers secured a search
warrant for Vaughn’s truck and the men’s apartment. Officers
found two revolvers and two camouflage jackets in the truck; in the
apartment, they found a pair of pants with the same distinctive
markings.

     The State charged Sims with armed robbery, grand theft, and
possession of a firearm by a convicted felon. The jury convicted
Sims of armed robbery and petit theft (as a lesser included of grand
theft). The felon-in-possession charge, which had been severed,
was later dismissed.

                                 II.

                                 A.

     Sims first argues that the court erred in admitting testimony
that officers were looking for Vaughn’s truck and that it had been
under surveillance. According to Sims, the court should have
excluded the evidence under section 90.403, which precludes
evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of issues, misleading the jury,
or needless presentation of cumulative evidence.” We review this
issue only for an abuse of discretion, Hudson v. State, 992 So. 2d
96, 107 (Fla. 2008), and we find none. The trial court acted within
its discretion in allowing testimony explaining how officers first
contacted Sims. Regardless, we conclude that if this were error, it
was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.
1986).


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                                 B.

     Second, Sims argues that his trial counsel should have moved
for a judgment of acquittal “on the basis that the state failed to
introduce identity and corpus delicti before introducing Sims’s
admission.” Init. Br. at 17. Trial counsel’s failure in this regard,
Sims maintains, shows constitutional ineffectiveness and a
corresponding Sixth Amendment violation.

     “With rare exception, ineffective assistance of counsel claims
are not cognizable on direct appeal.” Ellerbee v. State, 87 So. 3d
730, 739 (Fla. 2012). That rare exception applies only when the
appellant demonstrates ineffectiveness on the face of the record,
“indisputable prejudice,” and the lack of any conceivable tactical
explanation for counsel’s action. Morales v. State, 170 So. 3d 63, 67
(Fla. 1st DCA 2015). Here, the record includes nothing to show
Sims’s counsel should have made the corpus-delicti argument Sims
asserts on appeal.

     The corpus-delicti rule turns on the “fundamental principle of
law that no person be adjudged guilty of a crime until the state has
shown that a crime has been committed.” State v. Allen, 335 So. 2d
823, 825 (Fla. 1976). Therefore, before introducing evidence of a
confession, the State must show that there was some crime. Burks
v. State, 613 So. 2d 441, 443 (Fla. 1993); see also Allen, 335 So. 2d
at 825 (“A person’s confession to a crime is not sufficient evidence
of a criminal act where no independent direct or circumstantial
evidence exists to substantiate the occurrence of a crime. The
judicial quest for truth requires that no person be convicted out of
derangement, mistake or official fabrication.”). The proof of some
crime need not be “overwhelming or uncontradicted,” and the State
need not prove that the defendant was the culprit before
introducing evidence of a confession. Acoff v. State, 180 So. 3d 185,
188 (Fla. 1st DCA 2015); see also Ramirez v. State, 133 So. 3d 648,
651 (Fla. 1st DCA 2014). As long as the State puts on evidence of
a crime, it can follow with evidence of an otherwise admissible
confession.

    Before the State introduced testimony about Sims’s
confession, it presented testimony from the robbery victims (the
Quick Mart employees), and it introduced surveillance video
showing two masked men robbing the store. This was sufficient.
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Any motion for judgment of acquittal based on the corpus-delicti
rule would have been meritless, so counsel acted appropriately in
not making one. See Hartley v. State, 206 So. 3d 836, 838 (Fla. 1st
DCA 2016) (counsel not ineffective for failing to make futile
objections or motions). 1

                                 C.

     Sims’s third argument on appeal is that double-jeopardy
principles preclude convictions for both armed robbery and petit
theft. The State agrees, confessing error and concluding the petit
theft conviction must be vacated. But we are not required to accept
the State’s confession, and before we reverse any criminal
judgment, we must be certain the law requires reversal. Perry v.
State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002). Here, we cannot
agree with Sims or the State on the double-jeopardy argument.

      Sims relies on J.C.B. v. State, in which this court held that
“[a] charge of robbery necessarily includes the elements of a charge
of petit theft in that in proving a charge of robbery under section
812.13, the State must also prove the elements of petit theft under
section 812.014(2)(c).” 512 So. 2d 1073, 1074 (Fla. 1st DCA 1987).
Sims then argues that because petit theft was a necessary lesser
included of robbery, he could not be convicted of both. The State
bases its agreement on Sullivan v. State, a short opinion in which
we reversed a petit theft conviction based on double jeopardy. 631

    1 To the extent Sims argues that his confession could not be
admitted unless the State had proof of the crime and the culprit’s
identify before obtaining the confession—cf. Init. Br. at 20 (“[T]he
corpus delicti and identity of the robbers were obtained from
evidence retrieved under a search warrant only after Sims
allegedly confessed.”); id. at 21 n.1 (“However, a pair of pants with
the same distinctive back pockets as seen on one of the suspects in
the store video was retrieved from the apartment where Sims was
staying after the deputy interrogated Sims, obtained the search
warrant and it was executed at the apartment.” (emphasis in
original))—Sims misunderstands the rule. The State is not
precluded from introducing a confession simply because the
confession preceded (or even initiated) the investigation that led to
charges.

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So. 2d 1142, 1142 (Fla. 1st DCA 1994). We noted that the “dual
offenses [petit theft and robbery] arose from a single criminal
episode against a single victim,” and we held that the lesser
conviction must be vacated. Id.

     Both Sims and the State have overlooked the Florida Supreme
Court’s decision in McKinney v. State, which held that double
jeopardy does not prohibit dual convictions for robbery and theft.
66 So. 3d 852, 856-57 (Fla. 2011). In McKinney, the court explained
that “[t]here is no constitutional prohibition against multiple
punishments for different offenses arising out of the same criminal
transaction as long as the Legislature intends to authorize
separate punishments.” Id. at 854. And to determine whether the
Legislature authorized separate punishments for robbery and
theft, it looked to section 775.021, which provides that “[t]he intent
of the Legislature is to convict and sentence for each criminal
offense committed in the course of one criminal episode or
transaction.” § 775.021(4)(b), Fla. Stat. The Legislature provided
three “[e]xceptions to this rule of construction,” one of which Sims
contends is applicable here: “Offenses which are lesser offenses the
statutory elements of which are subsumed by the greater offense.”
Id. § 775.021(4)(b)3.

     In McKinney, the court rejected the argument that grand theft
and robbery fit in this exception. It did so by comparing elements
of the statutory offenses and concluding that each offense included
an element that the other did not. Id. at 857. Robbery required a
showing of “force, violence, assault, or putting in fear,” which
grand theft did not, and grand theft required proof of the value of
property taken, and robbery did not. Id. (quoting statute). That
was enough to show that the exception did not apply, that “neither
offense is wholly subsumed by the other” or necessarily included
in the other. Id. Thus, there was no double-jeopardy violation.

    The same is true here. Sims’s first-degree petit theft
conviction required proof that he took property valued between
$100 and $300. § 812.014(2)(e), Fla. Stat. The robbery conviction
required no such showing, but it did require a showing of force or




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threat, which the theft charge did not. Just as in McKinney, there
was no double-jeopardy violation. 2

                                 D.

     Finally, Sims argues that his life sentence was
unconstitutional. His sentence was based on section 775.082(9),
which requires a life sentence for a “Prison releasee reoffender,”
defined to include someone who commits robbery within three
years after release from prison. Id. Sims argues that under Alleyne
v. United States, 570 U.S. 99 (2013), the Sixth Amendment
requires a jury—not a judge—to determine his eligibility for a PRR
sentence.

     Sims acknowledges that his argument is foreclosed by our
decision in Williams v. State, in which we explicitly held “that
Alleyne does not require a jury to make the PRR factual
determination.” 143 So. 3d 423, 424 (Fla. 1st DCA 2014). He argues
that we should recede from this decision, but we are powerless to
do that absent en banc review. Each panel decision is binding on
future panels, absent an intervening decision of a higher court or
this court sitting en banc. Taylor Eng’g, Inc. v. Dickerson Florida,
Inc., 221 So. 3d 719, 723 n.3 (Fla. 1st DCA 2017); see also In re Rule
9.331, Determination of Causes by a Dist. Court of Appeal En Banc,
Fla. R. App. P., 416 So. 2d 1127, 1128 (Fla. 1982) (“[T]he suggestion
that each three-judge panel may rule indiscriminately without
regard to previous decisions of the same court is totally
inconsistent with the philosophy of a strong district court of appeal
which possesses the responsibility to set the law within its
district.”).

    Sims also suggests that the Supreme Court’s decision in Hurst
v. Florida, 136 S. Ct. 616 (2016)—issued after Williams—
mandates a different outcome despite Williams. Even if we were
otherwise inclined to agree, however, this court has reaffirmed its

    2  Even if the petit theft conviction did not require proof of
value, it is not clear there would have been a double-jeopardy
violation. Unlike in Sullivan, where the offenses were “against a
single victim,” 631 So. 2d at 1142, there were multiple victims
here.

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Williams holding even after Hurst. See Murphy v. State, 227 So. 3d
242 (Fla. 1st DCA 2017), cert. denied sub nom. Murphy v. Florida,
138 S. Ct. 1270 (2018) (“We affirm in all other respects, and reject,
as we have before, the argument that a prison releasee reoffender
sentence is unconstitutional if a jury did not make the finding that
the defendant was released within the previous three years.”). We
are therefore bound to reject Sims’s argument and affirm his
sentence.

    AFFIRMED.

WOLF and JAY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Andy Thomas, Public Defender, and Kathleen Pafford and Joanna
A. Mauer, Assistant Public Defenders, Tallahassee, for Appellant.

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




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