Eaton v. StateEaton v. State
Petitioners Eaton and Gombos request review of the decision of the Fourth District Court of Appeal in Eaton v. State, 410 So.2d 933 (Fla. 4th DCA 1982), on grounds of direct and express conflict with Turner v. State, 369 So.2d 670 (Fla. 1st DCA 1979), disapproved, Potts v. State, 430 So.2d 900 (Fla. 1982), and Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980), pursuant to
Gombos and Dawn Sobel undеrtook to help Eaton escape from prison, implementing a plan developed by Eaton and several fellow prisoners. During the escape attempt, Gombоs‘s shotgun discharged, killing a guard. Gombos claimed the discharge was accidental, caused by a defect in the gun. Gombos and Eaton were tried together, and the jury found Gombos guilty of second-degree murder and aiding in an attempt to escape and Eaton guilty of first-degree murder and attempting to escape. Eaton was sentenced to life imprisonment; Gombos was sentenced to seventy-five years, and the court retained jurisdiction over the first third of the sentence. The Fourth District Court of Appeal affirmed their convictions and sentences on all counts.
Such is not the situation now before us. Here, although two defendants were charged and tried jointly, they were separate defendants and the determination as to the guilt or innocence of each was a separate issue before the jury. This Court has recently held that a defendant tried sepаrately from his co-conspirators is not entitled to raise the conviction of a co-conspirator for a lesser offense as a bar to his own conviction for а greater offense. Potts v. State. In so holding we recognized that different evidence may be admissible against different defendants and that “jury pardon” may result in conviction for a lesser offense though the facts proved at trial would support a conviction for a greater offense. These same considerations apply to the situation now before us. The facts proved at trial were sufficient to sustain a conviction of premeditated murder against both defendants. That the jury may have extended to Gombos a measure of mеrcy it chose to withhold from Eaton, the instigator and ultimate beneficiary of the escape plot, does not render Eaton‘s conviction invalid or legally inconsistent. Thus, in finding this cаse controlled by Potts we reaffirm our earlier disapproval of Turner.
Second, Gombos and Eaton challenge the trial court‘s refusal to give a requested jury instruction and instead giving an instruction which they contend failed to meet thе standards set forth in Boyd v. State. “[T]he instructions should contain a definition of conspiracy, an explanation of the legal consequences of proving a conspiracy in the case, and the admonition that it is for the jury to determine whether a conspiracy has been established beyond a reasonable
As to petitioners’ first point, the standard jury instructiоn would be fatally deficient if it did not address the legal effect of proof of conspiracy. Petitioners do not challenge the adequacy per se of the standard jury instructions. The “legal effect” petitioners complain of is the admission into evidence of co-conspirators’ out-of-court statements which would otherwise have been barred by thе hearsay rule. This issue was raised far too late in the trial to have any protective effect on defendants’ behalf. Florida‘s Evidence Code provides an exception to the hearsay rule for statements made by co-conspirators, in furtherance of the conspiracy during the existence of the conspiracy.
The third point on appeal is Gombos‘s challenge of the trial judge‘s retention of jurisdiction for one-third of Gombos‘s sevеnty-five year sentence. We agree with the district court that this issue is without merit.
Accordingly, we approve the decision of the district court.
It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD and SHAW, JJ., concur.