205 So. 3d 784
Fla. Dist. Ct. App.2016Background
- Kenneth Proctor was tried for offenses including aggravated battery and aggravated assault with a deadly weapon (both involving his father, a person over 65), aggravated assault with a deadly weapon (against his girlfriend), and two counts of grand theft (firearm and vehicle).
- Victims testified Proctor hit his father with the father's pistol, threatened both victims with the gun, and that a firearm was present and at times discharged; photographs and officer testimony corroborated injuries and scene conditions.
- The jury convicted Proctor of battery on a person over 65 (lesser-included of count 1), aggravated assault with a deadly weapon on a person over 65 (count 2) but answered a special interrogatory that Proctor did not actually possess a firearm for that count, aggravated assault with a deadly weapon with discharge (count 3), and both grand-theft counts.
- Sentences were imposed concurrently, including a 15-year sentence (with a 3-year mandatory minimum) for the aggravated assault on the father and a 20-year mandatory minimum for the girlfriend assault.
- Proctor appealed arguing the jury's finding that he did not possess a firearm was legally inconsistent with the aggravated-assault-with-deadly-weapon conviction because the only deadly weapon alleged was the firearm; the court considered whether this created a "true inconsistent verdict" and whether the error was fundamental.
Issues
| Issue | Proctor's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the jury's finding that Proctor did not possess a firearm is legally inconsistent with conviction for aggravated assault with a deadly weapon | The firearm was the only deadly-weapon evidence; a finding of no firearm negates an essential element of aggravated assault with a deadly weapon | Jury could have "pardoned" Proctor on the firearm element (e.g., found gun unloaded) or relied on an alternative theory; verdict irregularity must be preserved below | The verdicts were legally inconsistent (a "true inconsistent verdict") because possession of the firearm was necessary to prove the deadly-weapon element under the trial evidence; conviction reversed for that count |
| Whether the inconsistency is forfeited because Proctor did not object before the jury was discharged | No specific argument by Proctor on preservation beyond asserting fundamental error | The State contended irregularity must be raised before jury discharge under Fla. R. Crim. P. 3.570 | Court ruled issue was fundamental error that affected the foundation of the conviction and so was not forfeited; reversal required |
| Whether reduction to a lesser-included offense or retrial is required | Proctor sought reduction given the inconsistency | State preferred preservation of conviction or other remedy | Court remanded to enter judgment for the lesser-included offense (assault on a person over 65) and to resentence accordingly |
| Whether Gerald and related authority control the outcome | Proctor relied on Gerald and cases recognizing true inconsistent verdicts | State relied on distinctions in later cases (McGhee) and possible alternative explanations for the verdict | Court followed Gerald reasoning: where the only deadly-weapon evidence is a firearm and jury finds no firearm, aggravated-assault verdict cannot stand |
Key Cases Cited
- Gerald v. State, 132 So. 3d 891 (Fla. 1st DCA) (true inconsistent verdict where jury found aggravated assault with deadly weapon but specifically found no firearm possession)
- Brown v. State, 959 So. 2d 218 (Fla. 2007) (discussing true inconsistent verdicts and legally interlocking charges)
- Powell v. State, 674 So. 2d 731 (Fla.) (recognizing the rule against true inconsistent verdicts)
- McGhee v. State, 174 So. 3d 470 (Fla. 1st DCA) (distinguishing Gerald where weapon identity disputed and lesser-included option was given)
- Williams v. State, 10 So. 3d 1172 (Fla. 3d DCA) (firearm may be a deadly weapon when used as a club even if unloaded)
- Bentley v. State, 501 So. 2d 600 (Fla.) (possession of a firearm element does not require proof it was loaded)
- Jaimes v. State, 51 So. 3d 445 (Fla. 2010) (fundamental error defined as going to the foundation of the case)
- Sanford v. Rubin, 237 So. 2d 134 (Fla.) (definition of fundamental error)