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E-Copy Received Jan 7, 2014 10:17 AM
IN THE DISTRICT COURT OF APPEAL
STATE OF FLORIDA
FOURTH DISTRICT
CASE NO. 4D13-3344
Lower case No. 12007314 CF 10A
ANTHONY COSTANZO,
Honorable MICHAEL ROBINSON
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
___________________________________________/
APPEAL FROM A FINAL JUDGMENT
FROM A JURY VERDICT OF GUILT
FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIALCIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

INITIAL BRIEF OF APPELLANT,
ANTHONY COSTANZO

RHEA P. GROSSMAN, P.A.
Attorneys for Appellant
2650 West State Road 84, Suite 103
Ft. Lauderdale, Florida 33312
(954) 791 2010
(954) 791 2141 – fax
rheagrossman@comcast.net
TABLE OF CONTENTS
Page
TABLE OF CONTENTS
..........................
2
TABLE OF CITATIONS
..........................
4
................
6
INTRODUCTION
STATEMENT OF THE CASE
a. Proceedings below
..........
7
b. Facts
..........
9
c. Standard of review
..........
12
....................
13
ISSUES PRESENTED
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . .
14
ARGUMENT:
ISSUE I:
The trial court erred as a matter of law in failing
to grant COSTANZO’S motion for judgment of acquittal
as to the charge of Tampering With or Fabricating Physical
Evidence
................
ISSUE II:
16
The trial court erred as a matter of law in failing to grant
Defendant COSTANZO a judgment of acquittal, or alternatively,
a new trial since there was insufficient legal evidence to have
convicted COSTANZO on the charge of Tampering With or
Fabricating Physical Evidence
......................
22
2
ISSUE III:
The trial court erred as a matter of law in setting
a special condition of probation that there can be
"no early termination"
......................
CONCLUSION
.....................................
CERTIFICATE OF SERVICE
E-FILING
24
26
and
CERTIFICATE OF FONT
3
......................
27
......................
27
TABLE OF CITATIONS
Authorities:
Page(s)
Arriaga v. State, 666 So.2d 949 (Fla. 4th DCA 1996)
...........
25
Brown v. State, 454 So.2d 596 (Fla. 5th DCA 1984)
..........
20
C.K. v. State, 753 So.2d 617 (Fla. 4th DCA 2000)
..........
18
Cordova v. State, 675 So.2d 632 (Fla. 3d DCA 1996)
..........
23
Evans v. State, 997 So.2d 1281(Fla. 4th DCA 2009)
..........
19
Fulword v. State, 29 So.3d 425 (Fla. 5th DCA 2010)
..........
21
Fonseca v. State, 956 So.2d 1259 (Fla. 4th DCA 2007)
...........
12
Geibel v. State, 817 So.2d 1042 (Fla. 2nd DCA 2002)
..........
21
Graves v. State, 587 So.2d 633 (Fla. 3d DCA 1991)
..........
24
Hernandez v. State, 713 So.2d 1120 (Fla. 3d DCA 1998)
......
23
Jackson v. State, 983 So.2d 562 (Fla. 2008)
...........
12
Kelley v. State, 16 So.3d 196 (Fla. 1st DCA 2009)
...........
20
Moore v. State, 800 So.2d 747 (Fla. 5th DCA 2001)
..........
21
Murphy v. State, 976 So.2d 1242 (Fla. 2d DCA 2008)
..........
25
Obas v. State, 935 So.2d 38 (Fla. 4th DCA 2006)
...........
19
Reinlein v. State, 75 So.3d 853 (Fla. 2d DCA 2011)
...........
18, 19
Roussonicolos v. State, 59 So.3d 238 (Fla. 4th DCA 2011)
State v. Barnum, 921 So. 2d 513 (Fla.2005)
4
......
12
...........
20
State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994)
...........
21
State v. LaFave, 113 So.3d 31 (Fla. 2d DCA 2012)
...........
25
State v. Major, 30 So.3d 608, 609 (Fla. 4th DCA 2010) . . . . . . . . . .
18
Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981)
...........
21
Florida Statues §918(13)(1)(a) and (2)
...........
16, 22
Florida Statutes §§90.201, .202, .203
...........
22, 23
Other Authorities:
5
INTRODUCTION
This is an appeal in accordance with Rule 9.140(b)(B), Florida Rules of
Appellate Procedure.
ANTHONY COSTANZO is the defendant in the underlying criminal trial
and is the Appellant in this appeal. He will be referred to as "Defendant" or
"Costanzo". The State of Florida will always be referred to as "State".
The Record-On-Appeal consists of 14 volumes. Volume 1 contains the
circuit court criminal file and consists of 179 pages. The Clerk then labeled the
trial proceedings and transcripts in numbered Volumes 1 through 13. Numbered
volumes 1 through 11 consists of pages 1 through 1232. Volume 12 contains the
sentencing hearing and the pagination begins with page 1 through 32. A subsequent hearing held on May 22, 2013, is labeled Volume 13, pages 1 through 21
which contains the post trial motions. The Appellant will refer to the record by
volume and page except references to the written documents in the court file which
will be specifically indicated by "D" for document, after the volume number.
6
STATEMENT OF THE CASE
A. Course of Proceedings:
A four count information was filed against ANTHONY COSTANZO on
June 4, 2012. (R.Vol.ID-6-9). Count I of the Information set forth a violation of
Florida Statues §914.22(1)(a), (1)(f), and (2)(d), Tampering with a Witness; Count
II of the Information set forth a violation of Florida Statues §918(13)(1)(a) and
(2), Tampering with Evidence; Count III of the Information set forth a violation of
Florida Statues §838.21,Disclosure of Confidential Information; and Count IV of
the Information set forth a violation of Florida Statues §934.215, Felony Use of a
Two-Way Communication Device.
On April 30, 2012, the Defendant filed a Sworn Motion to Dismiss
(R.Vol.ID-32-61).
On May 17, 2012, the State traversed the motion (R..Vol.ID-64-69). Oral
argument on the motion to dismiss was heard on May 22, 2013 (R.Vol.XIII-1-21).
The trial court denied the motion to dismiss (R.Vol.ID-81-83) on June 17, 2013.
Trial commenced on Monday, July 8, 2013, on the four (4) counts of the
information (R.Vol.ID-94; Vol. 1).
On July 11, 2012, the State rested its case (R.Vol.VIII- 867). The Defendant
moved for a judgment of acquittal as to all charges (R.Vol.VIII-867-887).
7
The court granted the motion for acquittal as to Count I (R.Vol.1D-99; Vol. VIII888 ).
On that same day, the Defendant rested his case and there was no rebuttal
(R.Vol.VIII-889). Defendant renewed his motion for a judgment of acquittal as to
Counts II, III, IV (R.Vol.VIII-890) which was denied (R.Vol.VIII-891).
On July 16, 2013, the jury returned a verdict of guilty as to Count II
(R.Vol.ID-131; Vol.XI-1224) and found the Defendant not guilty of Counts III and
IV (R.Vol.ID-132, 133; Vol. XI-1225).
The defendant COSTANZO filed timely post trial motions: Motion for
arrest of Judgment and Motion for New Trial (R.Vol.ID-141-146), and
Supplemental Motion for New Trial (R.Vol.ID-147-150). The trial court denied all
post trial motions (R.Vol.ID-151-152).
The trial court entered a judgment in accordance with the jury verdicts and
adjudicated the Defendant and sentenced the Defendant to three years supervised
probation, without the right to petition for early termination of probation, and
taxed the statutory costs of prosecution against him together with a fine of
$2500.00 (R.Vol.ID-155-156).
This appeal ensued (R.Vol.ID-170-171).
8
B. Nature of the Case:
The factual matters involved in the prosecution of Defendant COSTANZO
are a bit innocuous and do not impact directly on the three legal issues before this
Court. Nonetheless, the foregoing is a brief summary of the pertinent facts that
relate directly to the three legal issues on appeal:
A BSO deputy and a trainee made a routine traffic stop on January 20, 2012.
(R.Vol.V-461-463)
Defendant CONSTANZO and two other BSO officers arrived at the stop as
back up officers. (R.Vol.V-500-501)
The driver of the vehicle was Mark Meyer and was stopped for making an
illegal turn. (R.Vol.V-467-468)
The passenger in the stopped vehicle was subsequently taken into custody
for violating drug laws. (R.Vol.IV-345; V-465-467)
The passenger was an alleged victim in an on-going prosecution (R.Vol.IV342) and while waiting to be processed she discussed various matters with the
officers present (R.Vol.IV-347-350)
The Defendant used his agency-issued I Phone to video the interaction with
the passenger/arrestee as is reflected on State's exhibit 17 (R.Vol.III-826)
9
The Defendant sent the video to another deputy whose cell phone was also
linked to the BSO server and to the general counsel for the Police Benevolent
Association (R.Vol.VIII-829)
The Defendant showed his supervisor the video (R.Vol.V-503) A short
while later, BSO deputies, confiscated the Defendant's cell phone and determined
that the video was deleted (R.Vol.V-515).
The Defendant's cell phone was inspected and forensically reviewed by the
FBI and Agent Agrait noted that Defendant's cell phone is linked to the BSO data
base as BSO is the host name (R.Vol.VI-667)
The State’s witness, ALEXANDER RODRIGUEZ, a member of the
BSO's Information Technology Unit (R.Vol.VIII-821), unequivocally stated that
Costanzo’s BSO email account was linked through his phone and that e-mails from
the cell phone are preserved in the BSO server and cannot be deleted or altered
(R.Vol.VIII-824).
BSO arrested the Defendant charging him in one of the four counts of the
information with tampering with evidence. (R.Vol.ID-6-9)
BSO recovered the video from Defendant's cell phone which was preserved
on the BSO server as seen in exhibit 18 which is the CD made from the
Defendant's e-mail account (R.Vol.VIII-827).
10
The FBI could not locate the video in question on the cell phone (R.Vol.VI667) The FBI admitted that the smart phones can receive signals from other
devices to delete data on its device (R.Vol.VI-671)
On July 11, 2012, the State rested its case (R.Vol.VIII- 867). The Defendant
moved for a judgment of acquittal as to all charges (R.Vol.VIII-867-887).
The court granted the motion for acquittal as to Count I (R.Vol.1D-99; Vol. VIII888 ). After resting his case, Defendant renewed his motion for a judgment of
acquittal as to Counts II, III, IV (R.Vol.VIII-890) which was denied (R.Vol.VIII891).
On July 16, 2013, the jury returned a verdict of guilty as to Count II
(R.Vol.ID-131; Vol.XI-1224) and found the Defendant not guilty of Counts III and
IV (R.Vol.ID-132, 133; Vol. XI-1225).
The defendant COSTANZO filed timely post trial motions: Motion for
arrest of Judgment and Motion for New Trial (R.Vol.ID-141-146), and
Supplemental Motion for New Trial (R.Vol.ID-147-150). The trial court denied all
post trial motions (R.Vol.ID-151-152).
The trial court entered a judgment in accordance with the jury verdicts and
adjudicated the Defendant and sentenced the Defendant to three years supervised
probation, without the right to petition for early termination if probation, and
11
taxed the statutory costs of prosecution against him together with a fine of
$2500.00 (R.Vol.ID-155-156).
This appeal ensued (R.Vol.ID-170-171).
C. Standard of Review:
The standard of review of a trial court's ruling on the denial of a motion for
acquittal is de novo. Fonseca v. State, 956 So.2d 1259 (Fla. 4th DCA 2007).
The standard of review of a trial court's ruling on the admission of evidence
is abuse of discretion. However, the court's exercise of its discretion is limited by
the rules of evidence. Roussonicolos v. State, 59 So.3d 238 (Fla. 4th DCA 2011).
The illegal condition of sentencing is reviewed as fundamental error.
Jackson v. State, 983 So.2d 562 (Fla. 2008).
12
ISSUES PRESENTED
ISSUE I.
Whether the trial court erred as a matter of law in failing
to grant COSTANZO’S motion for judgment of acquittal
as to the charge of Tampering With or Fabricating Physical
Evidence?
ISSUE II.
Whether the trial court erred as a matter of law in failing to grant
Defendant COSTANZO a judgment of acquittal, or alternatively,
a new trial since there was insufficient legal evidence to have
convicted COSTANZO on the charge of Tampering With or
Fabricating Physical Evidence
ISSUE III:
Whether the trial court erred as a matter of law in sentencing the
Defendant to probation with no right to petition for early termination?
13
SUMMARY OF THE ARGUMENT
This appeal presents three primary legal issues. The most interesting of the
issues, however, is whether in today's electronic age, this Defendant can be
convicted of tampering with evidence. In actuality, the permanent aspect of the
BSO servers, obfuscates the charge of tampering with evidence when the specific
evidence was and could always be retrieved from the bowels of BSO's
communication database. The Defendant used his assigned cell phone to video an
area of the police station where an arrestee was being processed. He showed the
video to his supervisor and e-mailed it to the general counsel of the Police
Benevolent Association and to an individual named Billy Koepke, who received
the video on his cell phone which was also linked to the BSO server. Costanzo
then, the State contends, deleted the video from his cell phone. He was
subsequently arrested for violation of Florida Statutes §918.13(1)(a) and (2),
Tampering with Evidence.
The evidence presented at the time of trial was that the data deleted from the
assigned cell phone remained in the archives on the BSO server, always to be
available for present and future reference. The video was never destroyed,
concealed, altered, or removed as required by Florida law for a conviction. The
14
law requires that Costanza's conviction be set aside and a judgment of acquittal be
entered.
The special condition added to the sentence of probation by the judge is
erroneous as a matter of law.
15
ARGUMENT
ISSUE I.
The trial court erred as a matter of law in failing to grant
Defendant COSTANZO a judgment of acquittal, or alternatively,
a new trial since there was insufficient legal evidence to have
convicted COSTANZO on the charge of Tampering With or
Fabricating Physical Evidence
The Defendant was convicted on July 16, 2013 by a jury on Count II of a
four (4) count information. The information, dated June 4, 2012, accused the
Defendant of Count I, tampering with a witness; Count II, tampering with
evidence; Count III, disclosure of confidential information; and, Count IV, felony
use of a two way device.
At the close of the State’s evidence, the Court granted a judgment of
acquittal as to Count I. Thereafter the jury determined the Defendant was not
guilty of Counts III and IV.
Specifically, the charge to which Defendant was found guilty, was a
violation of F.S.§918.13, Tampering with or fabricating physical evidence.
(1) No person, knowing that a criminal trial or proceeding or an
investigation by a duly constituted prosecuting authority, law enforcement
agency, grand jury or legislative committee of this state is pending or is
about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing
16
with the purpose to impair its verity or availability in such proceeding
or investigation; or
(b) Make, present, or use any record, document, or thing, knowing it
to be false.
(2) Any person who violates any provision of this section shall be guilty of a
felony of the third degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
The State’s witness, ALEXANDER RODRIGUEZ, a member of the
BSO's Information Technology Unit (R.Vol.VIII-821), unequivocally stated that
Costanzo’s BSO email account was linked through his phone and that e-mails from
the cell phone are preserved in the BSO server and cannot be deleted or altered
(R.Vol.VIII-824).
State's exhibit 17 (R.Vol.VIII-826) is the e-mail from
Costanzo's cell phone. Exhibit 18 is the CD made from the e-mail (R.Vol.VIII827).
This same information was known by and relied upon by the Assistant State
Attorney when the State filed its sworn traverse and stated that “[b]ecause
Costanzo’s BSO email account was linked through his phone, said video was
recovered from BSO’s server.” (R.Vol.ID-71-72).
Based on the trial testimony of Deputy Rodriguez and the State's own
admissions, the trial court should have granted a dismissal of count I at the time the
17
motion to dismiss was argued. Regardless, the trial court had a second and third
opportunity to grant a judgment of acquittal after the State rested its case and when
the Defendant rested his case.
Certainly when the Defendant filed his post trial motions the Court should
have granted him a judgment of acquittal in accordance with Florida law.
R.Crim.P. 3.380. When faced with a motion for judgment of acquittal, the trial
court must measure the legal adequacy of the evidence before presenting the case
to the jury for deliberation. “Sufficient evidence is ‘such evidence, in character,
weight, or amount, as will legally justify the judicial or official action demanded.’”
Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981).
The State was required to prove that the Defendant destroyed the video with
the intent to impair its ability for investigation. Reinlein v. State, 75 So.3d 853
(Fla. 2d DCA 2011). “To establish a violation of the statute, ‘the State must prove
a defendant ‘had knowledge of an impending investigation and destroyed evidence
in order to impair its availability for the investigation’.’” State v. Major, 30 So.3d
608, 609 (Fla. 4th DCA 2010) (quoting C.K. v. State, 753 So.2d 617, 618(Fla. 4th
DCA 2000).
Under the facts presented to the jury in this case, the State’s evidence is not
sufficiently strong enough to show that the intent of Costanzo was for the
destruction of the video for the purpose of impairing its availability for an
18
investigation in light of the fact that he was using his employer's cell phone and
had e-mailed the video to two separate people in addition to showing his superior
officer. Compare Reinlein v. State, 75 So.3d 853, 855 (Fla. 2d DCA 2011).
The Fourth DCA, in the case of Obas v. State, 935 So.2d 38 (Fla. 4th DCA
2006), recognized that if the physical evidence could be retrieved, there was no
violation of the statute. The court determined that “where [a defendant] merely
dropped the cocaine rocks and tossed the container on the ground, and both were
easily found, the evidence was insufficient. Otherwise a tampering conviction
could be obtained whenever a suspect merely drops drugs on the ground.” Id., at
page 39.
Thereafter, in Evans v. State, 997 So.2d 1281, 1282 (Fla. 4th DCA 2009),
the Fourth District concluded that a trial court had erred by denying a motion for
judgment of acquittal on a charge of tampering with evidence, explaining:
The only evidence presented to the jury was that the defendant
either threw or dropped the cocaine rock in the sand and the
officers were unable to find it thereafter. Without further evidence
of specific intent to tamper with or conceal the evidence, the only
additional circumstance that the jury could consider is the fact that
the defendant happened to be on sand at the time he threw or
dropped the rock. To convict without more penalizes the defendant
for the type of surface upon which he was standing at the time of
his arrest. Therefore, the lack of other circumstances in this record
leads to the conclusion that, even in the light most favorable to the
State, the evidence is insufficient to find anything more than mere
abandonment....
19
In the present case, the only evidence the State has produced that the
Defendant tried to destroy the video is that the video was not on the cell phone
when it was searched. The video was being stored by the sheriff’s office on the
server and was readily available to the State. In fact, one of the State's witnesses,
Sergeant Jason Tarala, stated that he knew when using the Sheriff's cell phone that
all e-mails, whether personal or not, were stored by BSO in its Informational
System (R.Vol.VIII-492-493).
If the state fails to sustain this burden of proof, a trial court is duty bound to
grant a judgment of acquittal in favor of the defendant. Brown v. State, 454 So.2d
596, 599 (Fla. 5th DCA 1984).
Due process guarantees that the State must prove each essential element of
the offense beyond a reasonable doubt. State v. Barnum, 921 So. 2d 513, 519 (Fla.
2005).
A Defendant has the right "to have the trial judge evaluate and weigh the
evidence independently of the jury's findings to determine whether the jury verdict
was contrary to the weight of the evidence." Kelley v. State, 16 So.3d 196, 197
(Fla. 1st DCA 2009)(citation omitted).
[W]hen considering a motion for new trial under Florida Rule of Criminal
Procedure 3.600(a)(2), based on a claim that the verdict is against the
weight of the evidence, the trial court must exercise its discretion to
20
determine “whether a greater amount of credible evidence supports one side
of an issue or the other.” Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2nd
DCA 2002)(citation omitted) (emphasis added); see also Moore v. State, 800
So.2d 747, 749 (Fla. 5th DCA 2001)(when determining whether a verdict is
contrary to the weight of the evidence,“ ‘the trial court acts as a safety valve
by granting a new trial where the evidence is technically sufficient to prove
the criminal charge but the weight of the evidence does not appear to
support the jury verdict’ ”) (quoting State v. Hart, 632 So.2d 134, 135 (Fla. 4th
DCA 1994)(citation omitted). Thus, rule 3.600(a)(2) “ ‘enables the trial judge
to weigh the evidence and determine the credibility of witnesses so as to act,
in effect, as an additional juror.’ ” Id. (quoting Tibbs v. State, 397 So.2d 1120,
1123 n.9 (Fla. 1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652
((1982)).
Fulword v. State, 29 So.3d 425, 426 (Fla. 5th DCA 2010).
The State’s evidence is not sufficiently strong enough to show that the intent of
Costanzo was for the destruction of the video for the purpose of impairing its
availability for an investigation.
Common sense would indicate that the sole
reason the State did not avail itself of any information on the video for the purpose
of further charges or leads, was because the information was totally useless, of no
use, worthless and of no moment.
There is a insufficiency of evidence as to an essential element of the crime,
to wit: intent and destruction of the video. The conviction must be reversed.
21
ISSUE II
The trial court erred as a matter of law in failing
to grant COSTANZO’S motion for judgment of acquittal
as to the charge of Tampering With or Fabricating Physical
Evidence
Count II of the information filed against the Defendant (R.Vol.ID-6-9) is a
violation of F.S.§918.13, Tampering with or Fabricating Physical Evidence, in
relevant part, states:
(1) No person, knowing that a criminal trial or proceeding or an investigation by
a duly constituted prosecuting authority, law enforcement agency, grand jury or
legislative committee of this state is pending ...[emphasis by undersigned]
One of the issues of this criminal charge is that the defendant knew there
was a criminal proceeding. Over the objection of the Defendant (R.Vol.III-328)1/,
the Court took judicial notice of the pending criminal action against Officer
Koepke. Even though the State acknowledged that the "a pending criminal
proceeding" was an element of the charges, the State attempted to get around the
need for proof by relying upon F.S. §90.202.
Nonetheless, the State had not
followed the procedures in F.S.§90.203.
1/
In fact, Defense counsel asked for s mistrial after the ruling (R.Vol.III-331).
22
A court may take judicial notice of the following matters, to the extent that
they are not embraced within s. 90.201:
(6) Records of any court of this state or of any court of record of the United States
or of any state, territory, or jurisdiction of the United States.
(7) Rules of court of any court of this state or of any court of record of the United
States or of any other state, territory, or jurisdiction of the United States.
However, the Court’s discretion is not unfettered. F.S.§90.203 provides that
A court shall take judicial notice of any matter in s. 90.202 when a party
requests it and:
(1) Gives each adverse party timely written notice of the request,
proof of which is filed with the court, to enable the adverse party
to prepare to meet the request.
(2) Furnishes the court with sufficient information to enable it to
take judicial notice of the matter.
Whether or not the Court believes that the procedural omission by the State
warrants post trial relief, the taking of Judicial notice by this Court is reversible
error.
The state has the burden of proving every essential element of a crime
charged by proof beyond a reasonable doubt. It therefore follows that a court
should not take judicial notice of an essential element of a criminal charge, thereby
allowing the State to shun its burden of proof as to each element of a crime.
Cordova v. State, 675 So.2d 632 (Fla. 3d DCA 1996); see also Hernandez v. State,
23
713 So.2d 1120 (Fla. 3d DCA 1998) (it was improper for the court to take judicial
notice of fact that court file reflected that defendant was served with a copy of
domestic violence injunction, as service of the injunction was an element of the
state’s case, in prosecuting for violation of a domestic violence injunction.); and
compare Graves v. State, 587 So.2d 633 (Fla. 3d DCA 1991) (a surveyor’s map
was allowed into evidence through judicial notice for use as a aid to the officers as
to where each was standing and not to prove that there was less than 1000 feet
between incident and school ground).
The State’s evidence as to proof of the elements for conviction of Count II of
the Information, is legally insufficient as the State failed to prove at least one of the
elements of the charge, to wit, that there was a criminal proceeding opened,
pending or intended to be filed.
ISSUE III.
The trial court erred as a matter of law in sentencing the Defendant to
three years probation without the right to petition for early termination.
The trial judge, on August 19, 2013, adjudicated the Defendant guilty of
tampering with evidence and sentenced him to three years probation (R,Vol.ID157-163). For reasons unspecified, the trial court set forth a condition of probation
that the Defendant is not able to petition for early termination (R.Vol.ID-160).
24
In 1996, this Court in Arriaga v. State, 666 So.2d 949, held that a trial judge did
not have the authority to prohibit early termination of probation. See also,
Murphy v. State, 976 So.2d 1242 (Fla. 2d DCA 2008), compare State v. LaFave,
113 So.3d 31 (Fla. 2d DCA 2012).
If this Court affirms the conviction of the Defendant, the Court should strike the
special condition of probation set by the trial court.
25
CONCLUSION
The Defendant ANTHONY COSTANZA, for the reasons and law cited
herein, respectfully requests that this Honorable Court remand this matter to the
trial court with directions to set aside the jury's verdict of guilt as to Count II
and grant the Defendant's motion for judgment of acquittal or grant Defendant's
motion for judgment notwithstanding the verdict on Count II , at the very least,
strike the special condition of probation.
Respectfully submitted,
RHEA P. GROSSMAN, P.A.
2650 West State Road 84, Suite 103
Ft. Lauderdale, Florida 33312
(954) 791 2010
(954) 791 2141-fax
rheagrossman@comcast.net
By: __/s/Rhea P. Grossman_______________
RHEA P. GROSSMAN
Florida Bar #092640
Counsel for Appellant, ANTHONY COSTANZO
DATED: January 6, 2014
Fort Lauderdale, Florida
26
CERTIFICATE OF SERVICE AND CERTIFICATE OF E-FILING
I HEREBY CERTIFY that a true and correct copy of this INITIAL BRIEF
OF APPELLANT was furnished this 6th day of January, 2014, by electronic
means, to:
Office of Attorney General
Criminal Appeals
1515 North Flagler Drive, Suite 900
West Palm Beach, Florida 33401.
Counsel for State of Florida
I HEREBY further certify that a true copy of this INITIAL BRIEF OF
APPELLANT was furnished to the Clerk by electronic delivery in addition to the
mailing of the hard copies through the United States Postal Service as directed by
Administrative Order No. 2011-1, dated August 16, 2011.
By: _______/s/Rhea P. Grossman ____________
Rhea P. Grossman
Florida Bar #092640
CERTIFICATE OF FONT
This INITIAL BRIEF complies with the typeface requirements of
Fla.R.App.P.920(a)(2) using TIMES NEW ROMAN in 14 point.
By: _______/s/Rhea P. Grossman ____________
RHEA P. GROSSMAN
Florida Bar #092640
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