TYLER BRYCE SIMMONS vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: March 3, 2023
• Docket: 23-0070
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

TYLER BRYCE SIMMONS, Case Nos. 5D23-70 Appellant, 5D23-72 LT Case Nos. 19-CF-4740 v. 20-CF-3648

STATE OF FLORIDA,

Appellee. ________________________________/

Decision filed March 3, 2023

Appeal from the Circuit Court for Duval County, Kevin Blazs, Judge.

Robert David Malove, of The Law Office of Robert David Malove, P.A., Fort Lauderdale, for Appellant.

Ashley Moody, Attorney General, and Zachary F. Lawton, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

EISNAUGLE and HARRIS, JJ., concur. LAMBERT, C.J., concurs specially, with opinion. Case Nos. 5D23-70 5D23-72 LT Case Nos. 19-CF-4740 LAMBERT, C.J., concurring specially. 20-CF-3648

Tyler Bryce Simmons was convicted after trial of possession of a

firearm by a convicted felon, with the jury making a special finding that

Simmons was in actual possession of a firearm. At the time of this offense,

Simmons was also on community control for possession of a firearm by a

juvenile delinquent. Simmons was subsequently charged with violating his

community control; and during the course of the jury trial on his new offense,

the court held an evidentiary hearing on the State’s allegations that Simmons

violated conditions 4 and 5 of his community control by being in possession

of a firearm and for committing the above described new criminal offense.1

Following the jury’s verdict, the trial court announced that it found the State

had met its burden of proof that Simmons had violated the terms of his

community control.2

I concur in the affirmance of the conviction, the trial court’s finding that

Simmons violated his community control, and the resulting concurrent

sentences imposed. Contrary to Simmons’s argument on appeal, the trial

1 Simmons was also charged with other violations of his community control. The State did not pursue these alleged violations. 2 In its ruling, the court inadvertently referred to community control as “probation.”

2 court did not abuse its discretion in admitting into evidence the videos

showing that he was in actual possession of a firearm. 3 See Dolan v. State,

743 So. 2d 544, 546 (Fla. 4th DCA 1999) (“Admission of photographic

evidence is an exercise of the trial court’s discretion, and its decision will not

be overturned without a showing of abuse.” (citing Thompson v. State, 565

So. 2d 1311, 1314 (Fla. 1990))).

Nor did the trial court err in determining that the State met the relatively

low threshold for authentication of the videos prior to their admission. See

Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016) (explaining “that

authentication for the purpose of admission is a relatively low threshold that

only requires a prima facie showing that the proffered evidence is authentic;

the ultimate determination of the authenticity of the evidence is a question

for the fact-finder” (citing Gosciminski v. State, 132 So. 3d 678, 700 (Fla.

2013))); see also Lamb v. State, 246 So. 3d 400, 409 (Fla. 4th DCA 2018)

(holding that requiring the State to provide testimony from persons who

appear in the video, or from someone who recorded the video, sets the

authentication burden too high if the video’s distinctive characteristics and

content, in conjunction with the circumstantial evidence, are sufficient to

authenticate the video).

3 The State relied on this video evidence to establish that Simmons was in actual possession of a firearm.

3 I further conclude that the trial court also did not abuse its discretion in

permitting the testimony of Detective Stephen Barborini, the State’s expert

witness in the field of firearm identification. See Booker v. Sumter Cnty.

Sheriff’s Off./N. Am. Risk Servs., 166 So. 3d 189, 194 n.2 (Fla. 1st DCA

2015) (“An appellate court will review under an abuse of discretion standard

a trial court’s admission or exclusion of expert testimony.” (citing Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 142 (1999))); United States v. Brinson,

791 Fed. App’x 33, 37 (11th Cir. 2019) (noting that “[w]hile the officers who

testified at [the defendant’s] trial did not see the alleged firearm in person,

they all viewed the photographs and video depicting [the defendant] holding

what appeared to them to be a firearm” and holding that “[a]lthough [the

defendant] contrasts [Detective] Barborini’s testimony with that of his expert

witness’s, the jury had exclusive province over credibility determinations and

was entitled to accept Barborini’s testimony and reject [the defendant’s]

expert witness’s testimony”).

I do, however, agree with Simmons that the trial court erred when its

order revoking community control did not specify the conditions of

community control that Simmons had violated. See Davis v. State, 276 So.

3d 484, 485 (Fla. 1st DCA 2019) (finding that the order revoking probation

was legally insufficient when the trial court failed to specify each condition of

4 probation that the appellant had violated and indicate that the violation was

willful (citations omitted)).

However, because this error was not preserved for appellate review by

raising this specific issue in a Florida Rule of Criminal Procedure 3.800(b)(2)

motion to correct sentencing error, I agree that the order revoking community

control is properly affirmed. See Mendenhall v. State, 233 So. 3d 1288, 1288

(Fla. 5th DCA 2018) (concluding that the error committed by the trial court in

failing to state in its written order the condition of probation that the appellant

was found to have violated was not preserved for appellate review when the

appellant failed to object at trial or raise this specific issue in a rule

3.800(b)(2) motion); cf. Jones v. State, 898 So. 2d 209, 209 (Fla. 2d DCA

2005) (finding that the trial court’s error in failing to specify in its written

revocation order the condition of probation that it orally found the defendant

had violated was properly preserved for review by the defendant filing a

motion to correct sentencing error pursuant to rule 3.800(b)(2)).