Tush-ee Lewis Hunter v. State of Florida
174 So. 3d 1011
| Fla. Dist. Ct. App. | 2015Background
- Defendant Tush-ee Lewis Hunter was convicted of robbery with a deadly weapon and aggravated assault on a person 65 or older; he appealed raising three principal errors.
- Hunter had previously been adjudicated incompetent and committed for restoration; hospital reports later indicated competency had been restored.
- A competency hearing was noticed and convened; the record shows some hearings/status conferences (July–September 2012), defense requested further psychiatric evaluation (focusing on insanity at the time of the offense), and no written order finding competency appears in the record.
- A recorded 9‑1‑1 call by witness Alex Taylor (with an unidentified speaker heard in the unredacted tape) was admitted at trial under the excited‑utterance exception; portions identifying the unidentified speaker were redacted before jury playback, but some of Taylor’s statements repeating that speaker’s comments remained.
- The trial court sentenced Hunter as a Habitual Violent Felony Offender (HVFO) and Prison Releasee Reoffender (PRR); Hunter argued Alleyne/Apprendi principles required jury findings for enhancement facts.
- The court affirmed the convictions and sentences, concluded any competency finding was made orally (but remanded for a nunc pro tunc written competency order), found the hearsay error harmless, and held Alleyne does not invalidate HVFO/PRR enhancements.
Issues
| Issue | Hunter's Argument | State's Argument | Held |
|---|---|---|---|
| Competency hearing and written order after prior adjudication of incompetence | Court failed to hold required hearing and failed to enter written order adjudicating restored competency | Court held/considered reports and orally accepted counsel’s statements; competency was effectively determined and trial proceeded; any omission of a written order can be remedied nunc pro tunc | Court concluded trial court made an oral competency determination (cite Martinez) but remanded to enter a written competency adjudication nunc pro tunc |
| Admission of 9‑1‑1 recording (double hearsay) | Recording contained hearsay within hearsay: Taylor repeated statements made by an unavailable speaker (double hearsay) and admission was improper | Recording admissible as excited utterance; any hearsay‑within‑hearsay is governed by §90.805 and the portions were redacted; witness testified at trial about observations | Court acknowledged some inadmissible hearsay (e.g., “dark hair,” “black backpack”) but found the error harmless given cumulative/independent ID evidence (victim’s son ID, tattoo) |
| Imposition of HVFO and PRR enhancements without jury findings (Alleyne/Apprendi) | Alleyne requires jury to find all facts that increase punishment beyond statutory maximum, so enhancements required jury findings | HVFO/PRR predicates involve prior convictions or prison‑release timing (facts collateral to the offense) and fall within the prior‑conviction exception (Apprendi) or are not elements of the charged offense | Court held Alleyne does not apply to HVFO or PRR sentencing; enhancements may be found by court (Apprendi exception for prior convictions) |
Key Cases Cited
- Jackson v. State, 880 So.2d 1241 (Fla. 1st DCA 2004) (failure to adjudicate restored competency before proceeding is reversible error)
- Samson v. State, 853 So.2d 1116 (Fla. 4th DCA 2003) (presumption that one adjudicated incompetent remains incompetent until adjudicated restored)
- Martinez v. State, 851 So.2d 832 (Fla. 1st DCA 2003) (oral statements by court accepting counsel’s competency representations can constitute an oral competency finding; remand to enter written order)
- Dougherty v. State, 149 So.3d 672 (Fla. 2014) (competency restoration requires hearing, review of expert evidence, independent judicial determination; parties cannot simply stipulate away the court’s responsibility)
- DiGuilio v. State, 491 So.2d 1129 (Fla. 1986) (harmless error standard for nonconstitutional error)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts that increase statutory maximum must be found by a jury)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (other than the fact of a prior conviction, any fact that increases penalty beyond statutory maximum must be submitted to a jury)
- Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014) (Alleyne does not apply to PRR sentencing)