Brooks v. StateBrooks v. State
Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.
SMITH, Judge.
Appellant appeals his convictions and sentences arising out of a crime spree. We agree with appellant that his conviction for robbery with a weapon should be reversed and a judgment entered for the lesser offense of simple robbery, because the starter pistol used in the offense did not constitute a weapon under the facts of this case. We affirm as to all other issues.
Turning to the arguments presented, we first note that appellant‘s challenge to the constitutionality of the habitual felony offender statute has been raised and rejected by this and other courts of this state, and does not form a basis for reversal. See e.g. Perkins v. State, 583 So. 2d 1103 (Fla. 1st DCA 1991). Next, in Daniels v. State, 577 So. 2d 725 (Fla. 1st DCA 1991), this court ruled that consecutive mandatory minimum sentences under the habitual violent felony offender statute are permissible. Finally, although it is inconsequential in light of our reversal of appellant‘s robbery with a weapon conviction, we note that at sentencing the trial court erroneously advised appellant that he would be eligible for parole in 30 years; however,
In opposition to appellant‘s motion for judgment of acquittal on the count charging robbery with a weapon, the state argued below, as here, that although the starter pistol did not meet the statutory definition of a firearm, it was a weapon for purposes of
As the state acknowledges, the McCray case focuses on the definition of weapon found in
It is true that Florida courts have generally utilized the statutory definition of “weapon” provided in
In this case, the state did not prove that the starter pistol had a capability to injure. The starter pistol was not used in a manner which would or could cause death or inflict serious bodily harm. Bates v. State, 561 So. 2d 1341 (Fla. 2d DCA 1990); Robinson v. State, 547 So. 2d 321 (Fla. 5th DCA 1989); Ridley v. State, 441 So. 2d 188 (Fla. 5th DCA 1983); Paul v. State, 421 So. 2d 696 (Fla. 2d DCA 1982); and MRR v. State, 411 So. 2d 983 (Fla. 3d DCA 1982); compare Gomez v. State, 496 So. 2d 982 (Fla. 3d DCA 1986) (toy gun was a “weapon” for purposes of armed robbery with a weapon conviction under
Finally, as we did in Daniels v. State, we certify the following question to the Florida Supreme Court:
GIVEN THE LEGISLATIVE INTENT UNDERLYING CHAPTER 88-131, LAWS OF FLORIDA, AND THE COURT‘S DECISIONS IN STATE V. ENMUND, 476 So. 2d 165 (FLA. 1985), AND STATE V. BOATWRIGHT, 559 So. 2d 210 (FLA. 1990), DOES A TRIAL JUDGE HAVE THE DISCRETION, UNDER
SECTIONS 775.021(4) AND775.084, FLORIDA STATUTES (1989) , TO IMPOSE CONSECUTIVE MINIMUM MANDATORY TERMS OF INCARCERATION, FOR FELONIES COMMITTED BY AN HABITUAL VIOLENT FELONY OFFENDER?
AFFIRMED in part REVERSED in part and REMANDED for further proceedings consistent with this opinion.
ZEHMER and ALLEN, JJ., concur.
OPINION ON MOTION FOR REHEARING
PER CURIAM.
Appellant has filed a motion for rehearing, contending, and correctly so, that our opinion overlooks the supreme court‘s recent decision in Daniels v. State, 595 So. 2d 952 (Fla. 1992), which was released just prior to the release of our opinion in this case. The supreme court‘s Daniels decision holds that a court may not impose consecutive mandatory minimum terms of incarceration for felonies committed by a habitual violent felony offender arising from the same criminal episode.
In the case before us appellant received consecutive minimum mandatories for attempted robbery of Barbara Rahilly,1 grand theft of an automobile belonging to Rahilly, grand theft of an automobile belonging to Louise Manning, and robbery with a weapon of Robert Woodworth, which we reduced to simple robbery for the reasons stated in our original opinion. We agree with appellant that because the attempted robbery of Rahilly and the grand theft of her automobile arose out of a criminal episode which took place in one continuous temporal sequence and at the same location, the minimum mandatories imposed for these two offenses should have been designated to run concurrently rather than consecutively. However, the offenses against the other two victims were separate temporally and geographically from each other, and from the offenses against Rahilly and her property. We therefore adhere to our original holding that consecutive minimum mandatories for these offenses was permissible.
In its Daniels decision, the Florida Supreme Court analogized mandatory minimum sentences imposed under the habitual violent felony offender statute,
In the present case, appellant‘s initial brief argued that the trial court lacked authority to make appellant‘s sentences consecutive or to stack the mandatory minimum terms for offenses prosecuted in a single case because the enhancing language of
The Florida Supreme Court has now clarified the subtleties in the law concerning minimum mandatories in its Daniels decision by ruling that a trial court may not impose consecutive minimum mandatory sentences for felonies committed by an habitual violent felony offender arising from a single criminal episode. Importantly, the court restricted its ruling to minimum mandatory sentences for felonies arising from a single criminal episode, and impliedly, as it expressly did in Palmer, refused to prohibit consecutive minimum mandatory sentences for offenses arising from separate incidents occurring at separate times and places.
Because the offenses against the three victims in this case were separate temporally and geographically, Murray v. State, 491 So. 2d 1120 (Fla. 1986), the holding of Daniels does not apply to preclude consecutive minimum mandatories. Conversely, because the offenses against Rahilly and her property were committed in one place and at approximately the same time, the minimum mandatories for these offenses should have been designated concurrent rather than consecutive. Accordingly, with the exception noted, we adhere to our opinion affirming appellant‘s consecutive mandatory minimum sentences.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
SMITH, ZEHMER and ALLEN, JJ., concur.
OPINION ON SECOND MOTION FOR REHEARING
PER CURIAM.
This court issued its Opinion On Motion For Rehearing, which was filed April 15, 1992. Subsequently, appellant filed his second motion for rehearing in which he also requested rehearing en banc, and certification of a question of great public importance. Upon consideration, we deny appellant‘s second motion for rehearing, and for rehearing en banc, and adhere to our original Opinion On Motion For Rehearing.
However, in view of the uncertainties on this issue raised by the arguments of counsel, we certify as a question of great public importance the following:
MAY CONSECUTIVE ENHANCED SENTENCES BE IMPOSED UNDER
SECTION 775.084, FLORIDA STATUTES , FOR CRIMES GROWING OUT OF A SINGLE CRIMINAL EPISODE?
SMITH, ZEHMER and ALLEN, JJ., concur.