227 So. 3d 746
Fla. Dist. Ct. App.2017Background
- On Jan. 22, 2011, Shepard and the victim were at a bar, had an altercation, and later the victim left the bar and drove to his apartment complex.
- A witness saw Shepard’s white car flash lights, the victim exit his car and approach the white car, which then advanced and struck him. The victim died from head injuries the next day.
- Shepard was apprehended two weeks later in Chicago; items on him suggested flight.
- A jury convicted Shepard of manslaughter with a weapon (reclassified to a first-degree felony) and leaving the scene of a crash causing death.
- At sentencing the court commented Shepard showed no remorse and sentenced him to 30 years (manslaughter) and 15 years (hit-and-run), consecutive (45 years total).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Shepard) | Held |
|---|---|---|---|
| Whether an automobile can be a "weapon" under Fla. Stat. § 775.087(1) for reclassification | The car, as used to strike the victim, is a weapon under the statute because it was used to "use" a weapon during the felony | An automobile is not a weapon under § 775.087(1); its ordinary purpose is not combat (citing Gonzalez) | Court held an automobile can be a "weapon" when used to "use" a weapon under the statute; affirmed conviction and certified conflict with Gonzalez |
| Whether the trial court improperly considered lack of remorse at sentencing (unpreserved) | N/A (State argued sentence was within limits) | Court relied on Shepard’s perceived lack of remorse and post-offense conduct to increase sentence | Court found reliance on lack of remorse unconstitutional, vacated sentence, and remanded for resentencing before a different judge |
Key Cases Cited
- State v. Houck, 652 So. 2d 359 (Fla. 1995) (adopts common-meaning approach to "weapon" and directs courts to determine weapon status)
- State v. Burris, 875 So. 2d 408 (Fla. 2004) (discusses limits of "carried" deadly-weapon analysis in robbery context)
- Gonzalez v. State, 197 So. 3d 84 (Fla. 2d DCA 2016) (held automobile is not a weapon under § 775.087(1))
- Dumas v. State, 134 So. 3d 1048 (Fla. 1st DCA 2014) (lack of remorse is an impermissible sentencing consideration)
- Ritter v. State, 885 So. 2d 413 (Fla. 1st DCA 2004) (lack of contrition cannot be used to increase sentence)