Ramos v. State

75 So. 3d 1277, 2011 Fla. App. LEXIS 19923, 2011 WL 6183482
District Court of Appeal of Florida·Decided December 14, 2011·No. No. 4D09-4723·Published·Cited by 5 cases

Opinion

CIKLIN, J.

Adalberto Ramos appeals his convictions for four counts of sexual battery upon a child less than twelve years of age, one count of indecent assault, and one count of lewd or lascivious molestation. Ramos raises three points on appeal: 1) the trial court abused its discretion in denying his motion for continuance; 2) the trial court erred in summarily denying his motion for disqualification; and 3) the trial court erred in denying his motion for judgment of acquittal on the indecent assault charge.

We find that the trial court acted within its discretion in denying Ramos’s motion for a continuance and that the motion for disqualification was legally insufficient. We agree, however, that the trial court erred in denying Ramos’s motion for judgment of acquittal on the indecent assault count because the evidence at trial was insufficient to prove the commission of the [1279] crime during the period alleged in the information. Accordingly, we reverse the conviction and sentence for indecent assault. We affirm the remaining convictions and sentences.

Facts

Ramos was charged by information with four counts of sexual battery upon a child less than twelve years of age (counts IIV), one count of indecent assault (count V), and one count of lewd or lascivious molestation (count VI). Ramos was charged with having sexually abused the victim on multiple occasions between September 1, 1999, when the victim was eight years old, and May 13, 2003, just before the victim’s twelfth birthday.

Prior to trial, Ramos changed his attorney at least four times. The defense counsel who represented Ramos at trial, was hired sometime between July 10, 2009 and August 20, 2009. On August 31, 2009, defense counsel filed an amended motion to have Ramos declared indigent for costs. The trial court granted this motion on September 2, 2009.

On Thursday morning, October 15, 2009, the trial court held a calendar call to determine if the parties were ready for trial that was scheduled for the following Monday. The trial judge noted that this was the fifth time that the case had been set for trial and asked defense counsel if he was ready. Defense counsel responded that he was not ready as there were “paperwork” problems with the Justice Administrative Commission (“JAC”) surrounding the costs for deposition transcripts taken by previous counsel. The state had no objection to a continuance.

The trial court noted that Ramos had been in custody for a year and a half, and that Ramos “needs his day in court.” The trial court stated that it was going to leave the trial on for the following Monday and suggested that defense counsel call the JAC and use the fact that the trial was set as leverage. The trial court offered to call the JAC right there during the hearing, but defense counsel asked to handle it himself from his office.

On the following Monday afternoon, just prior to jury selection, defense counsel told the trial court that he had obtained two of the deposition transcripts, but that he had been unable to get two others, including the deposition transcript of the victim. Defense counsel also explained that he had been unable to depose two of the state’s potential witnesses because of the “indi-gency problem.”

Jury selection continued until 8 p.m. that evening. At the conclusion, defense counsel noted that because of the late hour, he had been unable to pick up the additional deposition transcripts and was scheduled to be in front of another judge the following morning. The trial judge asked defense counsel if he could make an opening statement without considering the deposition transcripts, and defense counsel replied, “Yes, I wouldn’t need them.”

The following morning, before opening statements, Ramos filed a written and verified motion to disqualify the trial judge. The motion alleged that the court’s failure to grant a continuance “along with [the court’s] demeanor with undersigned counsel ha[d] caused the Defendant to reasonably fear that he [would] not get a fair and impartial trial.” The trial court found that the motion was legally insufficient and summarily denied it.

By the time the trial court ruled on the motion for disqualification, it was already 1:30 p.m. At that point, the trial court asked defense counsel if he had been able to obtain the remaining deposition transcripts. Defense counsel replied that neither he nor anyone from his office had been able to retrieve it. The prosecutor [1280] was able to locate a copy of the deposition transcript and make copies for defense counsel. The trial court suggested that both parties make their opening statements and the state possibly begin its direct examination of the alleged victim while the copies were being prepared. The court would then give defense counsel time to review the deposition transcript before he cross-examined the witness. The trial court asked defense counsel if that was a “reasonable plan,” to which he replied, ‘Tes, sir.”

After the state completed its direct examination of the alleged victim, the court took a twenty-minute recess for defense counsel to read the deposition transcript. Defense counsel then cross-examined the witness. After the cross-examination, the trial judge asked defense counsel if he was satisfied with his cross. Defense counsel explained that he did the “best [he] could under the circumstances” and reiterated that he was given just twenty minutes before his cross — enough time to “breeze through it.” The court asked if the defense suffered any prejudice. At that time, defense counsel could think of only one possible question that Ramos had wanted him to ask. The trial court then gave defense counsel and Ramos another fifteen minutes to once again review the deposition transcript to determine if they wanted to ask any further questions. After defense counsel had a chance to review the deposition once more with Ramos, the trial judge asked him if there had been any prejudice with regard to his cross-examination of the alleged victim. Defense counsel responded in the negative and acknowledged that he had “covered everything” during his initial cross-examination.

The jury found Ramos guilty as charged on all six counts. The trial court subsequently sentenced Ramos to concurrent life sentences on the four sexual battery counts, fifteen years on the indecent assault count, and thirty years on the lewd and or lascivious molestation count.

Motion for Continuance

Ramos argues on appeal that the trial court erred in denying his motion for a continuance because JAC funding issues resulted in his counsel having inadequate time to prepare for trial. “The granting or denial of a motion for continuance is within the trial court’s discretion. Denial of a motion for continuance should not be reversed by an appellate court unless there has been a palpable abuse of this judicial discretion that clearly and affirmatively appears in the record.” D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003) (citations and quotation marks omitted).

In Lawson v. State, 884 So.2d 540 (Fla. 4th DCA 2004), we adopted the following language from McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986):

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Ramos v. State, 75 So. 3d 1277, 2011 Fla. App. LEXIS 19923, 2011 WL 6183482 (Fla. Ct. App. 2011).

75 So. 3d 1277 (Ramos v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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