Dempsey v. State, 72 So. 3d 258

On remand from Dempsey I, Dempsey was retried on attempted first-degree murder with a firearm, four counts of robbery with a firearm, and one count of attempted robbery with a firearm.
Victims testified two men in ski masks with revolvers robbed them in a parking lot; the robbers fled in a white Altima, later BOLO issued when a white Altima was seen.
A pursuing officer was shot at from the Altima; the suspects fled and Dempsey was eventually apprehended and identified as the man running from the car.
At the second trial, the court instructed the jury on attempted felony murder, over Dempsey’s objection, raising double jeopardy concerns.
Dempsey argued the trial improperly allowed an alternative theory not present at the first trial, and challenged the use of 'and/or' in robbery instructions referring to victims.
The trial court sentenced Dempsey under the Prison Releasee Reoffender Act with mandatory life imprisonment for the life-punishable felony and attempted first-degree murder.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy and attempted felony murder instruction	Dempsey contends the felony murder instruction at retrial violated double jeopardy.	State argues the instruction was lawful because evidence supported either theory and not based on a vacated charge.	No double jeopardy error; instruction lawful on alternative theory.
Use of and/or with victims in robbery instructions	Dempsey argues the 'and/or' improperly allowed conviction based on co-defendant’s conduct.	State asserts no fundamental error; separate verdict forms for each victim cured potential confusion.	No fundamental error; instructions properly framed with individual verdict forms.
Prosecutor's closing argument substitution of co-defendants' names	Dempsey contends the closing argument improperly allowed substitution of his name for co-defendants.	State contends comments were permissible and not fundamental error as they mirrored principal theory later given in instructions.	Not fundamental error; comments not reversible error.
Cruel and unusual punishment regarding mandatory life sentences	Dempsey claims life sentences under the Act are cruel and unusual for a twenty-one-year-old.	State asserts mandatory life sentence valid for prison releasee reoffenders under statute.	Affirmed life-imposed sentence; no constitutional violation.

Murray v. State, 3 So.3d 1108 (Fla.2009) (double jeopardy not violated where instruction supported by evidence and not based on vacated charge)
Lockhart v. Nelson, 488 U.S. 33 (U.S.1988) (double jeopardy limitations; standard for reviewing jury instructions)
O'Callaghan v. State, 429 So.2d 691 (Fla.1983) (felony murder theory can support a first-degree murder conviction when indicted for premeditated murder)
Pinder, 375 So.2d 836 (Fla.1979) (indictments may charge alternative theories of murder)
Stanley v. State, 57 So.3d 944 (Fla.2011) (recapitulates O'Callaghan rule in Florida context)
Dempsey I, 939 So.2d 1165 (Fla.4th DCA 2006) (reversed for error with 'and/or' as to victims; not about sufficiency)
Garzon v. State, 980 So.2d 1038 (Fla.2008) (no fundamental error where jury forms focused on individual defendant and crime)
Dorsett v. McRay, 901 So.2d 225 (Fla.2005) (and/or usage discussed in context of multiple defendants)
Concepcion v. State, 857 So.2d 299 (Fla.2003) (and/or usage in jury instructions—statutory interpretation guidance)
Wilson v. State, 933 So.2d 598 (Fla.2006) (and/or usage with victims not prejudicial)
Merck v. State, 975 So.2d 1054 (Fla.2007) (closing argument review and permissible inferences)