De La Cova v. StateDe La Cova v. State
Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
Before PEARSON, BARKDULL and NATHAN, JJ.
PER CURIAM.
This appeal is brought by Antonio De la Cova and Gary Latham, who were codefendants to an information charging them with (1) conspiracy, (2) unlawfully attempting to discharge a destructive device, (3) attempted second degree arson, (4) unlawfully possessing explosives with intent to harm, (5) possessing an explosive without a license, (6) unlawfully transporting explosives, and (7) unlawful display of a firearm. (Only De la Cova was charged under this seventh count.) During the progress of the trial, codefendant Latham withdrew his plea of not guilty and pleaded nolo contendere. The last point on this appeal which pertains to Latham is the point questioning the validity of the sentence. Both defendants were found guilty by the jury and were sentenced as set out, infra, in the portion of this opinion dealing with the sentences.
The appellants’ brief presents four points. The gist of the appellants’ argument under point one is that the trial court erred in failing to grant a continuance in mid-trial when the State granted immunity to the witness Miguel Peraza and announced its intention to call him as a witness. The facts upon which the motion for continuance was based are that the defendant De la Cova announced that he would rely on the defense of entrapment and would rely on Peraza, who was an informer for the F.B.I., as the active person in the conspiracy. When the defendant attempted to take Peraza‘s deposition, Peraza took refuge in his Fifth Amendment privilege because charges were pending against him. Upon application to the court for aid, the trial judge ruled that Peraza would be required to respond to certain deposition questions having to do with his relationship with the F.B.I. and would not be required to respond to questions concerning his participation in the conspiracy and the crimes charged.
Appellant De la Cova‘s second point urges error in the court‘s denial of his motion for a directed verdict on count two, which charged an “... attempt to discharge a destructive device, in the vicinity of the structure located at 3458 Southwest 8 Street, with intent to do damage to said property, in violation of 77[7].04 and 790.161(2), Florida Statutes ...” and on count three, which charged an “... attempt to commit a crime, to-wit: ARSON IN THE SECOND DEGREE ...” on the same structure, “... in violation of 77[7].04 and 806.01(2), Florida Statutes ...” If we were to reach these issues, we would hold that ownership of the premises described in the allegations of these statutory crimes is not an element of the respective crimes because the statute eliminates the element.1
We hold that this point does not present reversible error because it was not raised in the trial court. A bare bones motion for directed verdict does not raise every possible claimed insufficiency in the evidence. Cf. G.W.B. v. State, 340 So. 2d 969 (Fla. 1st DCA 1976). Here, the argument is made for the first time on appeal and ought not be considered unless it amounts to fundamental error. It clearly was not fundamental because the premises were fully described and no prejudice to the defendant could have occurred. The possibility of double jeopardy, as urged by the defendant, does not exist. Cf. Llano v. State, 271 So. 2d 34 (Fla. 3d DCA 1972).
The third point urges that count two should have been dismissed upon defendant‘s motion because it improperly charged the defendant with an attempt to commit the crime described in
The fourth point challenges a part of the sentence. It is argued that the court erred in sentencing the defendants on counts two, three, four, five and six of the information. The defendants were sentenced as follows, with all sentences to run consecutively:
| Count | Crime | De la Cova | Latham |
|---|---|---|---|
| I. | “... did unlawfully and feloniously agree, conspire, combine or confederate with each other to commit felonies under the laws of the State of Florida, to-wit: THE PLACING OR DISCHARGING OR THE ATTEMPT AT DISCHARGING OF ANY DESTRUCTIVE DEVICE, ... ARSON, IN THE SECOND DEGREE, ... UNLAWFUL POSSESSION OF EXPLOSIVES, ... and UNLAWFUL TRANSPORTATION OF EXPLOSIVES ...” | 5 years | 5 years |
| II. | “... did unlawfully and feloniously throw, place, discharge, or attempt to discharge a destructive device ...” in contravention of Sections 777.04 and 790.161, Florida Statutes (1975). | 15 years | 15 years |
| III. | “... did unlawfully, willfully and maliciously attempt to commit a crime, to-wit: ARSON IN THE SECOND DEGREE ...” in contravention of Sections 777.04 and 806.01, Florida Statutes (1975). | 5 years | 5 years |
| IV. | “... did unlawfully and feloniously keep, store, possess or distribute [a] certain explosive, to-wit: DYNAMITE, with the intent to harm life, limb or property ...” in contravention of Section 552.22, Florida Statutes (1975) | 15 years | Nolle prosequi |
| V. | “... did unlawfully, knowingly and feloniously have in their possession, [a] certain explosive, to-wit: DYNAMITE, without having a license or permit thereof ...” in contravention of Sections 552.101 and 552.22, Florida Statutes (1975). | 5 years | 5 years |
| VI. | “... did unlawfully, knowingly and feloniously transport [an] explosive, to-wit: DYNAMITE ...” in contravention of Sections 552.12 and 552.22, Florida Statutes (1975). | 5 years | 5 years |
| VII. | “... did unlawfully and feloniously display, use, threaten or attempt to use [a] firearm or carry a concealed firearm, to-wit: PISTOL, while ... committing a felony ...” in contravention of Section 790.07, Florida Statutes (1975). | 15 years | Not charged |
The defendants first urge that the trial court erred in imposing separate sentences on counts two and three because the elements of the crime alleged are identical. It will be noted from the above tabulation that count two charged the attempted placing of a destructive device in violation of
There can be no doubt that only one action or transaction was proved. The question is whether the same act can, in this case, be said to constitute two separate crimes for which the defendants can be punished by consecutive sentences. We hold that although two separate crimes were committed, the defendants may not be sentenced to consecutive terms for the two crimes where the proofs of the elements of each crime do not differ under the facts presented. In Jenkins v. Wainwright, 322 So. 2d 477 (Fla. 1975), in dealing with the sale of separate drug substances, the court held:
“The facts of the instant case show that the petitioner had possession of two separate drug substances, each of which constitutes in and of itself a separate violation of law. If multiple sentences are proper as set forth in Steele v. Mayo [72 So.2d 386], supra, Norwood v. Mayo [74 So.2d 370], supra, and Estevez v. State [313 So.2d 692], supra, they are proper in this instance, and we so hold. We recede from our decision in Foster v. State [286 So.2d 549], supra, to the extent that it conflicts with this opinion.
“We recognize that other states have mandated by statute that multiple or consecutive sentences are not to be imposed for offenses committed as part of a single transaction. E.g., California Penal Code § 654 (West 1970); Illinois Rev. Statute Ch. 38 § 1005-8-4(a) (1973); Minn. Statutes § 609.035 (1974). In the absence of a specific Florida statute, this Court adheres to the view expressed in its prior decisions in Steele v. Mayo, supra; Norwood v. Mayo, supra; and Estevez v. State, supra.” [Emphasis added]
The holding in Foster v. State, 286 So. 2d 549 (Fla. 1973), from which the Supreme Court specifically receded in part, is as follows:
“We hold, therefore, that in light of the facts and circumstances of the instant case, the trial court erred imposing sentence of fifteen years on petitioner‘s conviction of breaking and entering with intent to commit a felony, and imposing an additional concurrent sentence of five years on petitioner‘s conviction of possession of burglary tools. In a case such as this, only one sentence may be imposed, and that sentence, obviously, cannot exceed that which could be imposed solely
upon conviction for the highest offense contained within the transaction. We therefore must reverse the First District on this point.”
The holding in Estevez v. State, 313 So. 2d 692 (Fla. 1975); Norwood v. Mayo, 74 So. 2d 370 (Fla. 1954); and Steele v. Mayo, 72 So. 2d 386 (Fla. 1954); support the principle that multiple sentences are proper where there are two or more separate offenses growing out of the same criminal transaction.
We conclude that the “same transaction rule” has partial validity in Florida and that it still retains sufficient vitality to prohibit double punishment for the same series of acts where those acts, although constituting two crimes, have every element of proof of each of the two crimes in common.3
It is next urged that the trial court erred in sentencing the defendants for the separate crimes of possession of explosives without a license and unlawful transportation of explosives. It is well settled that two divisible criminal acts have transpired when the defendant is in possession of a firearm when committing a burglary or when a victim is shot after an attempted robbery. See Yates v. State, 317 So. 2d 462 (Fla. 1st DCA 1975); and Meeks v. State, 289 So. 2d 479 (Fla. 3d DCA 1974). It is clear, therefore, that these defendants violated two separate statutes. The evidence shows that the explosives were in the possession of the defendants at the Boca Raton apartment and that they were transported to Miami. Therefore, they possessed the explosives prior to their transportation. The elements of the two crimes are distinct and each is made punishable by statute. Therefore, upon authority of Jenkins v. Wainwright, 322 So. 2d 477 (Fla. 1975), we hold that no error appears upon the separate sentences for these two crimes.
Appellant De la Cova, as his last point, urges that the trial judge erred in sentencing him upon count four of the information because count four fails to allege a crime distinct from the crimes alleged in five and six of the information. By way of recapitulation, count four alleged that De la Cova possessed or distributed dynamite with “intent to harm life, limb or property.” The information recites that the act was done in violation of ”
We think that the only reasonable reading of the statute is that there is but one crime, although two authorized punishments — one for possession with intent to harm and the other for simple unlawful possession. This court has pointed out that unlawful possession alone raises a presumption of possession with intent to harm. See
Having considered each of the points presented, and finding no error in the judgments, we affirm the judgments as to defendant De la Cova and defendant Latham. It appearing as set forth above that the trial court erroneously sentenced each defendant to consecutive sentences on counts two and three, and it appearing that in such cases only one sentence may be imposed, which cannot exceed the sentence that could be imposed solely upon conviction for the highest offense contained in the transaction, accordingly, we reverse the sentence on count three, which is five years for each defendant for attempted arson in the second degree. It further appearing that the trial court erroneously sentenced De la Cova on count four and count five, we reverse the sentence of defendant De la Cova on count five, which is five years.
The judgments are affirmed and the sentences are amended by striking therefrom the sentences on count three of the information, and the sentence of defendant De la Cova on count five. The sentences as amended are affirmed.
Judgments affirmed; sentences amended.
Notes
Section 790.161, Florida Statutes (1975), states:
“Throwing, placing or discharging any destructive device or attempt so to do, felony; penalties. —
It is unlawful for any person to throw, place, discharge, or attempt to discharge any destructive device, as defined herein, with intent to do bodily harm to any person or with intent to do damage to property, and any person convicted thereof shall be guilty of a felony and punished in the following manner: (1) When such action, or attempt at such action, results in the death of another person, the person so convicted shall be guilty of a life felony, punishable as provided in § 775.082.
(2) When such action, or attempt at such action, results not in the death of any person, but does result in personal injury to a person or in damage to property, the person so convicted shall be guilty of a felony of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084. A sentence not exceeding life imprisonment is specifically authorized when great bodily harm to another or serious disruption of governmental operations results.”