                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

JEREMIAH EUGENE BEAZLEY,                 NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
      Appellant,                         DISPOSITION THEREOF IF FILED

v.
                                         CASE NOS. 1D13-3593/14-1688
STATE OF FLORIDA,

      Appellee.

____________________________/


Opinion filed October 21, 2014.

An appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

Nancy Daniels, Public Defender, and Megan Long, Assistant Public Defender, for
Appellant

Pamela Bondi, Attorney General, Jennifer Moore, Assistant Attorney General, and
Lauren Brudnicki, Assistant Attorney General, for Appellee




VAN NORTWICK, J.

      Jeremiah Eugene Beazley appeals his convictions and sentences for resisting

a police officer without violence (two counts) and tampering with physical

evidence. He also appeals the denial of post-conviction relief. Because, as the
State correctly concedes, Beazley’s two convictions for resisting arrest arose from

a single episode, we reverse one of those convictions, vacate the corresponding

sentence, and remand for entry of a corrected judgment and resentencing. For the

reasons that follow, we affirm all other issues raised on appeal.

      After a jury trial, Beazley was convicted of two counts of possession of a

controlled substance, tampering with physical evidence, and two counts of

resisting an officer without violence.        The convictions for possession of a

controlled substance were vacated by the trial court after the Florida Department of

Law Enforcement analyst who tested the contraband seized from Beazley and who

testified at Beazley’s trial was arrested for trafficking in controlled substances

submitted to FDLE for analysis in criminal investigations.          The trial court

determined that the evidence of probable tampering of evidence by the FDLE

analyst constituted newly discovered evidence warranting post-conviction relief as

to the convictions for possession. This appeal does not affect that grant of post-

conviction relief.   At issue in the case at bar are the remaining convictions:

tampering with physical evidence and two counts of resisting an officer without

violence.

      After observing an alleged narcotics transaction in a parking lot at a

convenience store, a sheriff’s deputy approached the alleged seller, Beazley, to

affect an arrest. Once the investigator identified himself and told Beazley to get


                                          2
out of his vehicle, Beazley thrust the door open and the two men began to wrestle,

according to the State’s evidence. Beazley was able to free himself and fled from

both the initial investigator and a second law enforcement officer who had arrived

on the scene. Beazley threw a plastic bag containing several pills into a ditch as he

fled. An unknown amount of the pills were dislodged from the bag and apparently

dissolved in water that had accumulated inside the ditch. A short time later

Beazley was apprehended and taken into custody.

      On appeal, Beazley argues that the skirmish with the initial investigator and

the flight from the two officers constituted a single, continuous episode thereby

permitting only a single conviction for resisting an officer. “Multiple convictions

on multiple counts of resisting arrest without violence arising out of a single

episode, even if more than one officer is involved, constitute a double-jeopardy

violation.” Fogle v. State, 754 So. 2d 878, 879 (Fla. 1st DCA 2000). The State

concedes that only one conviction should stand, and we agree.

      Additionally, Beazley argues his defense counsel was ineffective for failing

to move for a judgment of acquittal at the close of the State’s case on the charge of

tampering with evidence. Generally, a claim of ineffective assistance of counsel

may not be raised on direct appeal. See, e.g., Bruno v. State, 807 So. 2d 55 (Fla.

2001). An exception may be made to this general rule when the ineffectiveness is

obvious on the face of the appellate record, the prejudice caused by the conduct is


                                         3
indisputable, and a tactical explanation for the conduct is inconceivable. Stewart v.

State, 420 So. 2d 862 (Fla. 1982). Failure to move for a judgment of acquittal

when the State has not proved an essential element of its case may constitute

ineffective assistance of counsel. See Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d

DCA 2002).

      Beazley argues that because the State’s evidence established, at best, that he

abandoned the pills, the failure of defense counsel to move for a judgment of

acquittal as to the charge of tampering with physical evidence constituted

ineffective assistance as there was no evidence of intent. The abandonment of

evidence during flight from law enforcement, even if rendering the evidence

irrecoverable, does not constitute tampering without evidence of a specific intent to

tamper with or conceal the evidence. See Evans v. State, 997 So. 2d 1281, 1284

(Fla. 4th DCA 2009); Obas v. State, 935 So. 2d 38 (Fla. 4th DCA 2006).

      Without condoning defense counsel’s failure to move for a judgment of

acquittal, we are unwilling under these facts to hold that ineffective assistance is

apparent on the face of the record on direct appeal. Intent is notoriously a difficult

matter to prove directly. “Intent, being a state of mind, is often not subject to

direct proof and can only be inferred from circumstances.” Jones v. State, 192 So.

2d 285, 286 (Fla. 3d DCA 1966). “At the same time, ‘in a circumstantial evidence

case, the State's evidence must be not only consistent with guilt but inconsistent


                                          4
with any reasonable hypothesis of innocence.’” Benitez v. State, 852 So. 2d 386,

388 (Fla. 3d DCA 2003) (quoting Jeffries v. State, 797 So. 2d 573, 580 (Fla.

2001)). Beazley may raise this issue in a motion for post-conviction relief at which

time the trial court, as finder of fact, may consider whether there was

circumstantial evidence of intent.    The question of whether trial counsel was

ineffective is dependent upon a finding of evidence of intent sufficient to establish

a prima facie case, a question best resolved at the trial court level were evidence

and argument from both Beazley and the State can be heard. See McKinney v.

State, 579 So. 2d 80, 82 (Fla. 1991) (“The trial court is the more appropriate forum

to present such claims [of ineffective assistance] where evidence might be

necessary to explain why certain actions were taken or omitted by counsel.”).

      Finally, Beazley argues that the trial court erred in denying, in part, a motion

for post-conviction relief with regard to the conviction for tampering. As noted,

after Beazley’s conviction, Joseph Graves, the FDLE analyst who testified at

Beazley’s trial as to the nature of the pills abandoned by Beazley, was arrested for

trafficking of controlled substances taken from an FDLE laboratory. This court

relinquished jurisdiction so that the trial court could consider a motion for post-

conviction relief. While the trial court granted relief vis-a-vis the convictions for

possession of a controlled substance, it did not grant relief as to the conviction for

tampering with evidence because that conviction did not depend upon evidence


                                          5
being a controlled substance. Beazley argues the pills, regardless of whether they

were shown to be controlled substances or not, were rendered inadmissible by

virtue of the tampering committed by the FDLE analyst. Evidence for which there

is some indication of probable tampering is inadmissible, notes Beazley. See §

90.901, Fla. Stat. (2013).

      However, as the trial court found, the testimony of the FDLE analyst was not

essential with regard to the tampering charge. It was the testimony of the arresting

officer who had chased Beazley and who observed Beazley toss a bag of pills into

a ditch which was dispositive as to that charge. Therefore, we affirm the denial of

post-conviction relief on this ground, without prejudice to the appellant raising in

another post-conviction motion to the issue of whether defense counsel was

ineffective for failing to move for a judgment of acquittal as to the charge of

tampering with evidence.

      Because Beazley’s two convictions for resisting arrest arose from a single

episode, we reverse one of those convictions, vacate the corresponding sentence

therefor, and remand for entry of a corrected judgment and for resentencing.

Resentencing will be dependent upon the outcome of a second trial on the

possession charges, should the State wish to pursue such charges.

      AFFIRMED, in part, REVERSED, in part, and REMANDED for further

proceedings consistent with this opinion.


                                            6
MAKAR, J., CONCURS, WETHERELL, J., CONCURS IN RESULT ONLY.




                              7
