Freudenberger v. State

940 So. 2d 551, 2006 WL 3040274
CourtDistrict Court of Appeal of Florida
DecidedOctober 27, 2006
Docket2D04-5651
StatusPublished
Cited by4 cases

This text of 940 So. 2d 551 (Freudenberger v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freudenberger v. State, 940 So. 2d 551, 2006 WL 3040274 (Fla. Ct. App. 2006).

Opinion

940 So.2d 551 (2006)

Karl FREUDENBERGER, Appellant,
v.
STATE of Florida, Appellee.

No. 2D04-5651.

District Court of Appeal of Florida, Second District.

October 27, 2006.

*552 James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Karl Freudenberger was convicted and sentenced for three offenses that he committed against a Lutheran church: arson in the second degree, criminal mischief to a place of worship, and burglary of a structure. Mr. Freudenberger's sentences on the arson and burglary charges were enhanced under section 775.085, Florida Statutes (2003), commonly referred to as Florida's "Hate Crimes Statute." We affirm the judgments. However, because the jury did not make specific findings of fact to support the enhanced sentences, we reverse the sentences on the arson and burglary convictions and remand for resentencing.

I. THE PROCEEDINGS IN THE CIRCUIT COURT

The State charged Mr. Freudenberger with committing three offenses against the Apostles Lutheran Church located in Brandon: arson in the second degree, section 806.01(2), a second-degree felony (count one); criminal mischief to a place of worship resulting in damage greater than $200, section 806.13(2), a third-degree felony (count two); and burglary of a structure, section 810.02(4)(a), a third-degree felony (count three). The State sought to enhance the penalty for the arson and burglary offenses under section 775.085. The trial court gave the jury the 1997 version of the standard instruction concerning the requested enhancement. See *553 Fla. Std. Jury Instr. (Crim.) 3.3(f).[1] The jury returned guilty verdicts on the underlying offenses. The trial court adjudged Mr. Freudenberger to be guilty and imposed concurrent sentences as follows:

Count one: arson in the second degree, thirty years.
Count two: criminal mischief to a place of worship resulting in damage greater than $200, five years.
Count three: burglary of a structure, fifteen years.

The length of the sentences for the arson and burglary offenses reflected the reclassification of these felonies to the felony of the next higher degree in accordance with section 775.085.

II. THE ISSUES

On appeal, Mr. Freudenberger raises two issues. First, he argues that the trial court erred in denying his request for a jury instruction on the insanity defense. This argument is without merit, and we affirm Mr. Freudenberger's convictions on the underlying offenses without further discussion.

Second, Mr. Freudenberger argues that the trial court erred in enhancing the degrees of the offenses on the arson and burglary charges under section 775.085, the Hate Crimes Statute. The statute provides, in pertinent part:

(1)(a) The penalty for any felony ... shall be reclassified as provided in this subsection if the commission of such felony . . . evidences prejudice based on the . . . religion . . . of the victim:
. . . .
3. A felony of the third degree is reclassified to a felony of the second degree.
4. A felony of the second degree is reclassified to a felony of the first degree.
. . . .
(3) It is an essential element of this section that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated in this section.

Mr. Freudenberger advances two grounds in support of his challenge to the enhancement in the degrees of the arson and burglary offenses under this statute: (1) the information failed to allege a factual predicate for the enhancement[2] and (2) the jury's verdict did not contain sufficient findings of fact to support the enhancement. Although we are not persuaded by the first ground, we agree with the second. We will discuss each of Mr. Freudenberger's arguments on this point separately.

*554 III. DISCUSSION

A. The Adequacy of the Information

Mr. Freudenberger concedes that the information supports a judgment of conviction on all counts. Instead, he argues that the information does not "properly allege the enhancement" and thus does not adequately put him on notice of the State's intent to pursue an enhanced sentence under section 775.085. The State responds that "[t]he information . . . does, in fact, precisely track the language of the statute." (Emphasis added.) Based on this claim of linguistic precision, the State concludes that Mr. Freudenberger "was properly notified of the charges." Thus the initial question we address is whether the statutory language and the language of the charging document are identical in their form or in their effect.

We begin by comparing the pertinent statutory language with the enhancement allegations contained in the information:

[Statute:] The penalty for any felony . . . shall be reclassified as provided in this subsection if the commission of such felony . . . evidences prejudice based on the . . . religion . . . of the victim.

§ 775.085(1)(a) (emphasis added).

[Information] ... and during the commission of this [felony] did evidence prejudice based on the religion of APOSTLE'S [sic] LUTHERAN CHURCH.

(Emphasis added.) We also note that the information included a reference to section 775.085 by the statute number.

The State's claim of a precise correspondence between the statutory language and the language of the information will not withstand examination. We perceive a significant distinction between the use of the conjunction "if" in the statute and the employment of the preposition "during" in the information. We are guided in these grammatical investigations by the teaching of our supreme court in State v. Stalder, 630 So.2d 1072 (Fla.1994). In Stalder, the court adopted a limiting construction of section 775.085. In accordance with this limiting construction, the application of the statute is restricted to circumstances where the commission of the crime itself evidences prejudice; the mere exhibition of prejudice during the commission of the crime is insufficient to warrant enhancement of the offense. Id. at 1076-77. Put differently, the statute applies only to bias-motivated crime, i.e., a crime wherein the perpetrator selects the victim because of one or more of the victim's attributes delineated in the statute. Id. In its opinion, the court contrasted bias-motivated crime with a crime during which bias is merely exhibited. Id. The former is subject to the enhanced penalty feature of the statute while the latter is mere expression, which is protected speech. Id. Hence the State's use of the word "during" in the information arguably describes conduct that is not subject to reclassification under the statute based on the limiting construction adopted in Stalder.

Expanding on this theme, Mr. Freudenberger argues that the information does not allege conduct that would invoke the enhancement provisions of section 775.085 because the language used failed to allege that he selected the church as his victim because of its Lutheran faith. In support of his argument, Mr.

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940 So. 2d 551, 2006 WL 3040274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freudenberger-v-state-fladistctapp-2006.