5D03-3492 Mamerto Izquierdo v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3492

Case Date: 01/17/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

MAMERTO IZQUIERDO, Appellant, v. STATE OF FLORIDA, Appellee. __________________________________________/ Opinion filed January 21, 2005 Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge. Raymond M. Warren of Warren & Warren, P.A., Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D03-3492

TORPY, J. Mamerto Izquierdo ("Appellant") appeals his judgment and sentence following a jury trial on one count of aggravated assault, a third-degree felony, and one count of misdemeanor battery. Because we conclude that the lower court lacked jurisdiction to adjudicate the unrelated misdemeanor, we reverse as to that conviction. In all other respects, we affirm.

On April 29, 2002, Sheriff's Deputy Bentley was dispatched to the home of Mamerto and Maria Izquierdo. When he arrived, he spoke with Maria Izquierdo ("Maria") who told him that on the evening of April 28, 2002, as she was getting ready for bed, Appellant hit her in the face with a pillow and then hit her on the left arm with an open hand. During his conversation with Maria, Deputy Bentley asked her questions from a Domestic Violence Threat Level Assessment Checklist. Deputy Bentley also spoke with the Izquierdos' granddaughters, 12-year-old J.R. and 11-year-old S.R., who resided with the Izquierdos. J.R. told Deputy Bentley that on April 24, 2002, Appellant had placed a gun against J.R.'s head, cursed at her, and told her to shut up. J.R. expressed that she had been afraid that Appellant was going to shoot her. S.R. told Deputy Bentley that she had observed Appellant point the gun at J.R. and heard him threaten to kill "her and her sisters." That evening, Maria handwrote and signed an affidavit in which she averred that Appellant had hit her in the face with a pillow and on the left arm with his hand. J.R. and S.R. also wrote and signed affidavits confirming what they had told Deputy Bentley. Maria also gave written permission for deputies to search the premises. The officers found ammunition for .38 and .32 caliber guns, a holster, and a .32 caliber gun magazine; however, no gun was located on the premises. An amended information charged Appellant with aggravated assault with a deadly weapon for the incident involving J.R. that occurred on April 24, 2002, and with domestic battery for the incident involving Maria that occurred on April 28, 2002. On

October 9, 2002, Maria filed a Request for Dismissal of Charges in which she stated that the charges against Appellant should be dismissed because "he didnt [sic] hurt me

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really all was only a miss understanding [sic] he is not gilty [sic]." In January, March, and April of 2003, Maria wrote letters to the trial judge and public defender stating that Appellant was innocent of the charges, that he was a loving husband, father, and grandfather, and that her grandchildren were lying. During trial, Maria was called as a witness by the State. In response to questions by the State, and without objection, Maria testified that she and Appellant had enjoyed a "good relationship," that Appellant was "lovable and tender," a "nice" person, and that he had never been controlling over her, nor had she ever been afraid of him. Again without objection, Maria was impeached on several of these points through inconsistent statements from a prior deposition. As to the specific incidents that gave rise to the charges against Appellant, although seriously impeached through use of the prior inconsistent statements in her deposition and affidavit, Maria partially recanted her prior accusations by characterizing the pillow incident as an accident and recharacterizing the hit on her arm as a "tap." On cross-examination by Appellant's counsel, Maria testified that she had a "wonderful" relationship with Appellant, that her granddaughters never expressed fear of Appellant, and that she had never seen her husband threaten, hit or yell at any of his granddaughters. J.R. and S.R. both testified consistently with their previous statements to the police. After a one-day trial, the jury found Appellant guilty as charged of both felony aggravated assault (involving J.R.) and misdemeanor battery (involving Maria). The trial court sentenced Appellant to five years in prison on the felony and a concurrent jail sentence on the misdemeanor.

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Appellant's first contention on appeal is that the trial court lacked subject matter jurisdiction to adjudicate the misdemeanor charge under Article V, section 20(c) of the Florida Constitution, which provides in pertinent part as follows: (c)(3) Circuit courts shall have jurisdiction . . . of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged . . . . * * * (4) County courts shall have original jurisdiction in all criminal misdemeanor cases not cognizable by the circuit courts . . . .

Art. V,

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