Aikens v. StateAikens v. State
Because the appellant‘s convictions and sentences for robbery while carrying a firearm and assault with a firearm arose out of a single criminal transaction, we vacate that portion of the sentence for the assault which requires appellant to serve a three-year mandatory minimum term consecutively with the three-year mandatory minimum imposed for the robbery. State v. Ames, 467 So.2d 994 (Fla. 1985); Palmer v. State, 438 So.2d 1 (Fla. 1983).
THOMPSON, ZEHMER and BARFIELD, JJ., concur.
ON MOTION FOR REHEARING
PER CURIAM.
The state has filed a “Motion for rehearing; or for rehearing en banc, or for certification of question; and/or for stay of mandate.” We deny the motion.
The state argues vehemently in its motion that it is entitled to rehearing for numerous reasons. With a total disregard for the facts, the state cites cases both in its motion and by way of supplemental authority which it claims are dispositive of this case. It contends that the panel has no right to “effectively amend”
The state contends that the court‘s ruling was based upon conjecture because this court accepted at face value the appellant‘s “factually unsupported conclusory allegation” that the two crimes involved were committed during a single criminal episode, thus arguably mandating relief under Palmer. The state thus implicitly accuses this court of issuing its ruling without knowing the factual basis for appellant‘s plea, and without examining a transcript of the plea hearing to determine whether the crimes did occur during the same criminal episode or whether the imposition of consecutive mandatory minimum sentences was a condition of the plea bargain. The state then engages in the same conjecture that the court is accused of, and suggests that it is quite possible that appellant‘s crimes were committed during separate criminal episodes and that the imposition of consecutive mandatory minimum sentences may have been a condition of the plea bargain. The state prosecuted this case in the lower court and it certainly had access to the record so that it could have determined for itself whether there was a single criminal episode or whether the imposition of consecutive mandatory minimum sentences was a condition of the plea bargain. The state also has access to the files of this court which were used by the court in reaching its decision. It would be far more appropriate for the state to make an investigation and present facts to the court, rather than engage in conjecture that facts exist which might be a basis for denial of the Palmer motion. The state suggests in a footnote to its motion that it received information “from a clerk of this Court” that no transcripts appear in any of the appellant‘s files. This is correct, there was no actual transcript. However, if the state had checked the file in Case AN-276, as this court did, instead of relying upon an employee of the clerk‘s office, it would have found attached to the order of the lower court denying Aikens first motion for post-conviction relief an excerpt from the transcript of Aikens’ plea and sentencing proceedings. The excerpt of plea proceedings reveals that Aikens did not agree to the imposition of two consecutive mandatory minimum sentences as a condition of his plea. The excerpts from the plea and sentencing proceedings also reflect that the crimes for which Aikens was sentenced were committed in the course of a single criminal episode. The state, not the court, has engaged in conjecture.
The state next contends that the trial court properly dismissed the instant motion because it failed to allege new or different grounds for relief. The state cites the rule that a second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits. It subsequently filed a notice of supplemental authority citing the case of Adams v. State, 484 So.2d 1216 (Fla. 1986) saying that case held “without qualification that successive
State v. Thomas, 487 So.2d 1043 (Fla. 1986), the third supplemental authority cited by the state, permits stacking mandatory minimums if the defendant has possession of a firearm while committing ”distinct offenses involving two separate and distinct victims. (Emphasis supplied.)” Again, the law cited is correct but inapplicable to the facts in this case. The Thomas opinion factually distinguishes that case from Palmer and other similar cases involving a single episode. The only factual distinction between Palmer and this case is that Palmer involved the assault and robbery of 13 people at the same time in a funeral home and the instant case involves the assault and robbery of four people at the same time in a restaurant.
MOTION DENIED.
THOMPSON, ZEHMER and BARFIELD, JJ., concur.