        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                     JONATHAN JOSEPH COVELLO,
                             Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D12-765

                             [October 15, 2014]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie  County;    Gary     L.   Sweet,    Judge;    L.T.   Case     No.
562010CF003923AXXXXX.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Jonathan Joseph Covello appeals his judgment and sentence after a
jury found him guilty of burglary of a dwelling with an assault while
masked, home invasion robbery while masked, and grand theft. On
appeal, Covello argues that the trial court erred in: (1) denying his motion
to reopen his case after an item of evidence was misrepresented by the
State; (2) denying his motion for judgment of acquittal as to the burglary
of a dwelling with an assault and grand theft counts; and (3) failing to take
any action on the count of home invasion robbery while masked in
violation of double jeopardy. We reverse the trial court’s denial of Covello’s
motion to reopen his case. We also reverse Covello’s conviction for grand
theft because the evidence supported a conviction only for first degree petit
theft. We affirm without discussion the denial of the motion for judgment
of acquittal as to the burglary of a dwelling with an assault while masked.
The double jeopardy issue is rendered moot by our reversal for a new trial;
however, we write to assist the trial court on remand by explaining why a
conviction for the burglary of a dwelling with an assault while masked and
home invasion robbery while masked charges violate double jeopardy.

                 Factual Background and Trial Proceedings

    At trial, the victim of all three of the charges testified that she was home
alone at night, when she was awoken by someone standing next to her bed
telling her to wake up. It was dark in the room, but the victim said that
she could tell the intruder was young. He was wearing a black hooded
sweatshirt and jeans. The hood on the sweatshirt was pulled over his head
so that it covered most of his face.

   The victim testified that she and the intruder went to various rooms in
her house, and the intruder took items, such as her grandson’s Nintendo
DS, a video camera, a camera and case, a necklace, a cell phone, and some
keys. Although her bedroom had been dark, the victim testified that when
the two were in the kitchen she could see better because there were no
blinds on the kitchen window and there was a streetlight outside. She
could see that the intruder had a “real short haircut,” was not very tall,
had no bangs hanging down, and appeared to have a “crew cut.”

   After the two walked around the house for about ten minutes, the
intruder left the victim’s home out of the back door, telling her to “have a
nice night now, ma’am, okay?” The victim locked the door and called 911.

   Once officers arrived, the victim explained that her cell phone was
missing. The officers used the GPS on the phone to track its location to a
house on Hernando Street. An officer brought the victim to that location
to conduct a show up.

    While the investigation was beginning, Officer T responded to the area
and stopped two young men walking in the road who seemed suspicious.
The individuals were Thomas and Sizemore. Officer T testified that neither
of the two males had anything in their hands, but Sizemore was wearing
swimming trunks with no shirt or shoes. Officer T let the two go after
taking down their information and the location where they were heading,
which was a house on Hernando Street.

    Officer G, a K-9 officer, also responded to the victim’s house, and began
to track the scent left by the intruder with his K-9. Officer G testified that
his K-9 tracked the scent from the victim’s back door to a body of water
nearby, resumed the track at a different location, and ended in front of the
same house on Hernando Street to which Thomas and Sizemore said they
were heading. Once tracked to the house on Hernando Street, Officer G
was informed that there was someone in the attic of the house. Officer G

                                       2
went to the attic, announced his presence, crawled up, and eventually
apprehended Covello after he “popped up” and took off to the other side of
the attic.

    J.B., a friend of Thomas, testified that she went to Thomas’s house on
Hernando Street on the night of the incident to visit him. When she and
her friends arrived at his house, no one was there, so they went inside and
waited on the couch. She testified that about five minutes after she
arrived, Thomas and Sizemore arrived home, and then a few minutes later,
Covello arrived. J.B. stated that Covello was “sweaty and panicking when
he arrived,” did not have anything in his hands, and was wearing only
jeans and no shirt. She stated that, when he came in, Covello said “I just
robbed somebody” and ran into the bedroom. He then ran out of the
bedroom and said that the “cops are here, I’m going to the attic.” J.B.
testified that after hearing that, she decided she and her friends should
leave, but when they started to leave the house, police officers were already
in the driveway. She told the officers that Covello was hiding in the attic.

   Outside the house, Detective C spoke to Sizemore and Thomas. He
testified that Sizemore was “soaking wet” and “drenched,” like he had just
been swimming in his clothes, not just sweating. He further testified that
Thomas was also wet and his legs were covered in grass and dirt.

    At the house on Hernando Street, Officer M conducted a show-up with
the victim using Thomas, Sizemore, and Covello. Thomas was shown first
to the victim, but she said that he was not the perpetrator because he was
too tall with a lot of hair. Sizemore was shown next, but the victim said
he was not the perpetrator because he was shorter with “too much hair”
and his hair was blonde (suggesting the perpetrator’s hair was darker).
The third person she was shown was Covello. Unlike Thomas and
Sizemore, Covello was in handcuffs during the show-up. The victim said
she was “pretty sure” that he was the person in her home based on his
build and his hair.

   The State entered a photograph of Covello into evidence during its
examination of Officer G. After making an in-court identification of Covello
as the person he found in the attic, the State attempted to lay the
foundation for the photograph of Covello:

      Q:    Officer, I’m showing you what’s been previously marked
            as State’s exhibit 51, do you recognize that?

      A     Yes.


                                     3
      Q:       Okay, and what is that?

      A:       That is a picture of the suspect.

      Q:       Ah, and by, by suspect you mean the person you just
               pointed to, right?

      A:       Yes.

      Q:       Okay. And the hairstyle in this photograph, is it similar
               to how it looks today?

      A:       Yes.

      Q:       Okay. And was this person the way he looked on
               December 1st of 2010 when you apprehended him in
               the attic?

      A:       Yes.

   When the State sought to enter the photograph into evidence, Covello
objected. At sidebar, Covello argued that the photograph in the State’s
exhibit had been excised from a larger picture, he was not sure when the
picture was taken, and asked to know when the picture was taken for
potential impeachment purposes. The State responded that the exhibit
was excised from Covello’s booking photo, so it did not want to show the
remainder of the picture since it showed Covello in his jail clothes. The
State then represented:

      Court:          So [exhibit 51] was the date of his arrest?

      State:          Yeah.

      Defense:        So that’s your, your representation. I’ll go with
                      that if that’s. . .

      State:          Yes, I mean. . .

      Defense:        What they say. Okay, good enough.

      State:          I’ll, but, but I wanna make sure that there’s no,
                      because if, if you were also wanting for
                      impeachment he’s gonna answer it’s his booking
                      photo, so I just wanna make sure that’s not the
                      avenue you intend to go and not expect him to,
                      no, okay, I just wanna make sure.

                                         4
      Defense:      No.

The photograph was admitted into evidence as State’s exhibit 51.

    During its closing argument, the State referred to State’s exhibit 51 as
follows:

      Now Mister Sizemore, they want you to believe he must be the
      culprit, but [the victim] was specifically asked did this person
      have bangs and if you look at this picture of Mister Sizemore
      that was taken the night of the incident and this is State’s
      exhibit 49 for the record ah, he has hair nothing like Jonathan
      Covello. Nothing like it. And you have a picture in that
      evidence of Mist, what Mister Covello’s hair looked like on that
      night. It looks nothing like this.

      ....

      Short, shaved hair and this, again this came out as evidence,
      this was the night of the incident. The night of the incident,
      nothing like Brett Sizemore, nothing like it.

(emphasis added).

    After closing arguments, but before the jury instructions were given,
Covello brought an issue with State’s exhibit 51 to the trial court’s
attention. Covello’s attorney stated that Covello had just shown him his
actual booking photograph taken the night of his arrest, and pointed out
that State’s exhibit 51 was excised from a photograph taken when Covello
had been transported from a different county jail only a few days prior to
the trial.1 Based on this information, defense counsel asked to reopen his
case, for Covello to testify in a limited fashion and to lay the foundation to
introduce his actual booking photograph from the night he was arrested.
Defense counsel stated that Covello understood that by taking the stand
to lay the foundation, he would be open to impeachment based on his prior
convictions. Upon inquiry, Covello testified that he had his booking
photograph in his property locker at the jail at the beginning of trial, but
that he was able to retrieve it from his property locker only the night before
his proffer of testimony.



1
 Covello was held in a jail in another county during trial and was transported
between jails on more than one occasion. For security reasons, a photograph
was taken of him each time he was transported between jails.

                                      5
    The State argued that it would be “borderline ludicrous” to allow Covello
to reopen his case, that the officer authenticated the photograph as looking
similar to what Covello looked like on the night of his arrest, and if the
State “misspoke” in its closing argument, stating that State’s exhibit 51
was taken the night of the arrest, that was not how the testimony was
presented at trial. The trial court denied the request to reopen evidence
because the photograph was in Covello’s possession throughout the trial
and he had demanded a speedy trial. Covello proffered his testimony that
State’s exhibit 51 was actually taken the Friday before trial, and the
proposed defense exhibit 3 was the photograph taken when he was booked
into the jail on December 1, 2010.

   The jury found Covello guilty on all three counts, as charged. The trial
court sentenced Covello to life for the burglary count and five years
concurrent for the grand theft count. The trial court did not adjudicate or
sentence him on the home invasion robbery charge because the State
acknowledged it would violate double jeopardy to convict Covello of both
burglary of a dwelling with an assault while masked and home invasion
robbery while masked, but asked the judge

      to sentence on the burglary of a dwelling with an assault while
      masked um, however for purposes of appeal the State is
      asking that you not dismiss the home invasion count, you just
      kinda leave it out there that way he’s not being sentenced on
      that charge, but it’s not dismissed by this Court.

This appeal followed.

                               Legal Analysis

State’s Exhibit 51

   “The decision to reopen a case lies within the discretion of the trial court
and will not be disturbed on appellate review absent an abuse of
discretion.” Santiago v. State, 21 So. 3d 877, 881 (Fla. 4th DCA 2009)
(quoting Donaldson v. State, 722 So. 2d 177, 181 (Fla. 1998)) (internal
quotation marks omitted). However, “a denial will be reversed where the
request is timely made and the jury will be deprived of evidence which
might have had significant impact upon the issues to be resolved.”
Santiago, 21 So. 3d at 881 (quoting Delgado v. State, 573 So. 2d 83, 86
(Fla. 2d DCA 1990)).

  The jury was deprived of evidence which might have had a significant
impact upon the issues to be resolved. The State argued to the jury that

                                      6
its exhibit 51 was a photograph taken from the night Covello was arrested.
The record on appeal shows this assertion to be misleading. Comparing
the photograph from the night Covello was arrested with State’s exhibit
51, there is a difference in Covello’s hair length. Since the victim’s
identification of Covello as the person who was in her home was based at
least partially on his hair length, it was important that the jury be able to
view how Covello’s hair actually looked on the night of his arrest.

    Even if there is a difference between the hair lengths of Sizemore and
Covello in the photographs, as the State argues, there are additional
factors which indicate that Covello should have been given an opportunity
to show the jury the actual photograph from the night he was arrested: (1)
the victim’s description of the intruder’s haircut and length, (2) the relative
difference in the length of Covello’s hair in State’s exhibit 51 and defense
exhibit 3, and (3) the fact that the victim indicated that she was “pretty
sure” Covello was the intruder. Since the standard is whether the jury
was deprived of evidence which might have had a significant impact, these
factors, as well as the implications therefrom which Covello could have
argued, would have provided the jury with not only evidence it was
previously deprived, but also a true depiction of the facts of the case.
Additionally, since the State’s closing argument focused on comparing the
photograph of Sizemore and the photograph of Covello in its exhibit 51
from “the night of the incident” as the State argued, it is clear that the jury
should have been given the opportunity to view a true comparison of the
hair styles.

    Additionally, Covello’s request to reopen his case was timely. In
Santiago, we reversed a trial court’s ruling denying a defendant’s request
to reopen his case after the jury was instructed. 21 So. 3d at 879. In that
case, a Jimmy Ryce trial was held.2 Id. at 878. Only one of the defendant’s
doctor-witnesses was allowed to give an opinion regarding the defendant’s
risk to reoffend, and she opined that he was not a risk to reoffend. Id. at
879. The defendant’s doctor-witness testified that she was a member of a
psychology association. Id. The State offered a witness in rebuttal who
testified and provided a letter from the organization stating that the
defendant’s doctor-witness was not a member of the organization. Id.
After the closing arguments were given and the jury was instructed, but
before deliberations began, the defendant’s attorney informed the court
that the defendant’s doctor-witness had just gotten off of a plane and
would fax a copy of her membership card in the organization to prove she

2
  A “Jimmy Ryce” trial is a proceeding to determine if a defendant should be
involuntarily committed for treatment as a sexually violent predator. § 812.135,
Fla. Stat. (2014).

                                       7
was a member. Id. at 879-80. The defendant requested that he be allowed
to reopen his case to enter the copy of the membership card into evidence
to rebut the State’s witness’s assertion that she was not a member of the
organization. Id. at 880. The trial court denied the request. Id.

  In discussing the timeliness of a request to reopen evidence at trial, we
quoted our supreme court:

      Even if the case had been technically closed, it would have been
      an abuse of discretion to refuse to open the case and permit the
      evidence to be introduced, upon the proper showing being made
      as to why it had been previously omitted.

Id. at 881-82 (quoting Steffanos v. State, 86 So. 204 (Fla. 1920)) (citation
omitted). We held that, since the State’s evidence misled the jury, and was
compounded by the prosecutor’s argument in closing that reinforced the
statements testified by the State’s witness, the defendant should have
been allowed to reopen his case. Id. at 882.

    In this case, the trial had not even proceeded as far as the trial in
Santiago, as the jury had not yet been instructed. Therefore, the fact that
Covello requested that he be allowed to reopen his case after closing
arguments does not make his request per se untimely. Our supreme court
has held that a defendant should be allowed to reopen his case when “the
cause had not proceeded so far that the ends of justice would have been
defeated, or the orderly processes of the court disturbed, by an admission
of the testimony.” Steffanos, 86 So. at 206. Here, the jury had not yet
been instructed, and there would have been little disorder to the process
to allow Covello to submit defense exhibit 3 into evidence. Since the
photograph that Covello wanted to introduce would have been entered with
his limited testimony, it would not have interrupted the proceedings.

   The State argues that any error involved in the trial court’s ruling was
harmless. We disagree. Since the appearance of the hair of all three
suspects played a vital role in the victim’s identification of Covello, we
cannot say, beyond a reasonable doubt, that the trial court’s denial of
Covello’s motion to reopen his case “did not contribute to the verdict.”
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Covello should have
been given the opportunity to correct the misrepresentation that the State
presented to the jury. We therefore reverse Covello’s conviction, and
remand the case for a new trial.




                                     8
Judgment of Acquittal as to Grand Theft

    “Appellate review of the denial of a motion for judgment of acquittal is
de novo.” Burkell v. State, 992 So. 2d 848, 851 (Fla. 4th DCA 2008)
(citations omitted).

    In order for a person to be convicted of “grand theft, the State must
prove that the value of the [property taken] was greater than $300.”
Mansfield v. State, 954 So. 2d 74, 76 (Fla. 4th DCA 2007) (citing §
812.014(2)(c)1., Fla. Stat. (2005)). “Florida courts have found that an
owner’s opinion of fair market value is sufficient where it is supported by
‘evidence establishing the condition, quality, age, or depreciation of the
item at the time it was stolen.’” Sanchez v. State, 101 So. 3d 1283, 1287
(Fla. 4th DCA 2012) (quoting K.W. v. State, 983 So. 2d 713, 715 (Fla. 2d
DCA 2008)) (emphasis added).

    The State failed to elicit sufficient testimony from the victim regarding
the value of the items taken. For most of the items, the State failed to even
elicit a fair market value, and where it did, the opinion was not supported
with evidence establishing condition, quality, age, or depreciation of the
items. The only stolen item that the State established an adequate fair
market value for was the cell phone, which the victim estimated had a fair
market value of $200. The establishment of the $200 value of the phone
is not enough to prove that the value of the items taken was greater than
$300.

   Because there was insufficient proof of value to prove grand theft, the
judgment of acquittal as to grand theft should have been granted, and the
count should have proceeded as a petit theft. See Mansfield, 954 So. 2d
at 77. On retrial, the State is prohibited from proceeding on a theory that
the value of the stolen property was more than $300. Florida Rule of
Criminal Procedure 3.640 states that:

      When a new trial is granted, the new trial shall proceed in all
      respects as if no former trial had occurred except that when
      an offense is divided into degrees or the charge includes a
      lesser offense, and the defendant has been found guilty of a
      lesser degree or lesser included offense, the defendant cannot
      thereafter be prosecuted for a higher degree of the same
      offense or for a higher offense than that of which the
      defendant was convicted.

Fla. R. Crim. P. 3.640. Additionally, our supreme court, in Delgado v.
State, 948 So. 2d 681, 686 (Fla. 2006), “recognize[d] that an acquittal is

                                     9
required when a conviction is not supported by factually sufficient
evidence, and that such an acquittal gives rise to double jeopardy
protections.” (emphasis added) (internal citations omitted). Since we
determine that the State provided factually insufficient evidence at trial,
jeopardy attached, and Covello cannot be retried for any degree of theft
greater than first-degree misdemeanor petit theft. We find this consistent
with rule 3.640 as well, since, if the trial court had granted Covello’s
motion for judgment of acquittal at trial, as we find would have been
proper, the jury would have been able to find Covello guilty of only a first-
degree misdemeanor petit theft.

Double Jeopardy

   “Because double jeopardy issues involve purely legal determinations,
the standard of review is de novo.” Rimondi v. State, 89 So. 3d 1059, 1060
(Fla. 4th DCA 2012) (quoting Benjamin v. State, 77 So. 3d 781, 783 (Fla.
4th DCA 2011)).

   Although the trial court did not sentence or adjudicate Covello on the
home invasion robbery while masked charge, a court cannot avoid a
double jeopardy issue by failing to act on a charge. See Murphy v. State,
16 So. 3d 269 (Fla. 5th DCA 2009) (“A trial court must adjudicate and
sentence a defendant convicted of a crime, or in an appropriate case,
adjudicate the defendant not guilty due to a lack of sufficient evidence to
convict, double jeopardy, or any other legally sufficient reason. The trial
court may not simply refuse to act.”).

   While the State concedes error as to this inaction by the trial court
(invited by the State), it argues that we should reverse the home invasion
robbery while masked count, and allow the adjudication and sentence on
the burglary with an assault while masked count to remain in effect.
However, this would be contrary to established law, since the trial court
should have adjudicated and sentenced Covello on the home invasion
robbery while masked count and dismissed the burglary with an assault
while masked count as a violation of double jeopardy.

   “When an appellate court determines that dual convictions are
impermissible, the appellate court should reverse the lesser offense
conviction and affirm the greater.” Pizzo v. State, 945 So. 2d 1203, 1206
(Fla. 2006). The State argues that because the burglary with an assault
charge carries a greater maximum sentence, that it is the “greater” offense.
However, in the recent case of Tuttle v State, 137 So. 3d 393 (Fla. 2d DCA



                                     10
2014),3 the Second District reviewed a similar issue. In Tuttle, the
defendant was convicted, among other things, of attempted home invasion
robbery and armed burglary. Id. The State conceded that the defendant
could not be convicted of both for double jeopardy reasons, but the State
and defendant disagreed on which of the convictions was the “lesser” and
thus should be vacated. Id.

  The Second District quoted language from Pizzo, and concluded our
supreme court

      held that trial courts are to rely exclusively on an analysis of
      the statutory elements of the crimes to determine which is the
      “lesser,” and it explicitly rejected the argument advanced by
      the State that the determination of which offense is the
      “lesser” offense should be based on a comparison of the
      punishments for the two offenses.

Id. at 395. The Second District then analyzed the statutory elements of
home invasion robbery and burglary of a dwelling and determined:

      Home invasion robbery is defined as a “robbery that occurs
      when the offender enters a dwelling with the intent to commit
      a robbery, and does commit a robbery of the occupants
      therein.” § 812.135(1), Fla. Stat. (2010). Burglary is defined
      as “entering or remaining in a dwelling . . . with the intent to
      commit an offense therein.” § 810.02(1)(a), Fla. Stat. (2010).
      Even a cursory review of these elements makes clear that
      “[h]ome invasion robbery is in essence an aggravated form of
      burglary, because it requires a burglary and a robbery.”

Id. (citation omitted).

   The difference between the charges in this case, as compared to those
analyzed in Tuttle, is that the State charged Covello with burglary of a
dwelling with an assault, whereas Tuttle was charged with burglary of a
dwelling while armed.4 However, the elements analysis is similar. The
definition of robbery in section 812.13, Florida Statutes (2010) is:


3 We note that the Florida Supreme Court has accepted review of Tuttle. Tuttle,
137 So. 3d at 393, rev. granted, No. SC14-817, 2014 WL 3385588 (Fla. July 3,
2014).
4 Unlike Tuttle, Covello was charged with committing the offenses “while

masked.” Tuttle was charged with attempted home invasion robbery, whereas

                                      11
      (1) “Robbery” means the taking of money or other property
          which may be the subject of larceny from the person or
          custody of another, with intent to either permanently or
          temporarily deprive the person or the owner of the money
          or other property, when in the course of the taking there is
          the use of force, violence, assault, or putting in fear.

§ 812.13(1), Fla. Stat. (2010) (emphasis added). Therefore, since an
assault is also subsumed in the home invasion robbery statute, via the
definition of “robbery,” the burglary of a dwelling with an assault is also
subsumed within the home invasion robbery statute. Thus, the burglary
with an assault, although carrying a more severe potential sentence, is the
“lesser” offense for double jeopardy purposes and should have been
vacated.

   Upon remand for a new trial, if Covello is again found guilty of both
home invasion robbery and burglary of a dwelling with an assault, he
should be sentenced on the home invasion robbery charge and the
burglary of a dwelling with an assault charge should be dismissed on the
grounds of double jeopardy.

   Reversed and remanded.

STEVENSON and TAYLOR, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




Covello was charged with the completed crime. These additional distinctions do
not alter the analysis.

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