Wilson v. StateWilson v. State
Appellant pled guilty to an amended two-count information charging sexual battery with a firearm and kidnapping with a firearm. He was sentenced to two consecutive thirty-year sentences with consecutive three-year mandatory minimum sentences. The court retained jurisdictiоn under
As to point I, the trial court articulated the following reason for its retaining jurisdiction for the first one-half of each of appellant‘s sentences:
The express rеason for that being that the present status of the Parole Commission and its policies and philosophies relative to release from incarceration does not meet with the approval of the trial judiciary of this state, particularly to this Court, and, therefore, this Court feels that a judicial officer, and a judicial officer elected by the people alone, should make the determination as to when you are eligible for parole.
By no stretch of the imagination does that articulated reason satisfy the requirements of specificity and particularity set forth in
Regarding point II, we hold the trial court erred in retaining jurisdiction to review any parole commission release order for one-half of each of the consecutive thirty-year sentences. As recognized by our sister courts in the second and third districts in Adams v. State, 435 So.2d 953 (Fla.2d DCA 1983) and Goree v. State, 411 So.2d 1352 (Fla.3d DCA 1982), the trial court has the authority under
The state relies on the supreme court‘s decision in Harmon v. State, 438 So.2d 369 (Fla. 1983), decided subsequent to Adams and Goree.1 In Harmon, however, the issue was not precisely that which is raised under this pоint, but rather whether the imposition of six consecutive 100-year terms, with the trial court‘s retaining jurisdiction for one-third of each sentence violates the constitutional prohibition against indefinite terms of imprisonment contained in
Finally, as to point III, the trial court erred in imposing two consecutive mandatory minimum sentences. See Palmer v. State, 438 So.2d 1 (Fla. 1983); and Sams v. State, 441 So.2d 180 (Fla. 1st DCA 1983). Accordingly, on remand the trial court is directed to correct the sentences so that the two mandatory minimum sentences will be served concurrently.
LARRY G. SMITH, J., concurs.
NIMMONS, J., concurs with written opinion.
NIMMONS, Judge, specially concurring.
I concur in the court‘s opinion. I wish, however, to clarify my reason for considering
I am not as convinced as my colleagues that the statute contemplates review by appellate courts of the sufficiency of the reasons stated by the trial court for retention. See Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1981) (Cowart, J., specially concurring); but see Owen v. State, 441 So.2d 1111 (Fla. 3rd DCA 1983); compare Mobley v. State, 409 So.2d 1031, 1038 (Fla. 1982) (failure of trial court to make any findings justifying retention vacated and cause remanded so that findings may be made). In view of this court‘s previous decisions in retention appeals, e.g., Abbott v. State, 421 So.2d 24 (Fla. 1st DCA 1982), and Saname v. State, 427 So.2d 1083 (Fla. 1st DCA 1983), I concur in the court‘s decision to reverse on this ground. However, I favor certifying to the Supreme Court the following question as one of great public importance:
Do the appellate courts of this State have jurisdiction to review the sufficiency of the reasons stated by trial courts for retention of jurisdiction under
Section 947.16(3)(a) ?
ON REHEARING
PER CURIAM.
We are not persuaded to grant rehearing on the ground asserted by the state, that ground being that the sufficiency of the trial court‘s reasons for retention of jurisdiction under
However, we grant rehearing on the issue of the validity of the trial court‘s imposition of the two consecutive three-year mandatory minimum sentenсes even though the state has not sought rehearing on that ground. This issue was raised by appellant as his third point on appeal and was briefly treated in the last paragraph of our opinion. The only reference in the state‘s brief to that point was its concession that the issue was governed by the Supreme Court‘s holding in Palmer v. State, 438 So.2d 1 (Fla. 1983), but, said the state, reliance upon that holding would be premature because the state‘s motion for rehearing in Palmer was still pending. However, Palmer became final when the Supreme Court denied rehearing on October 19, 1983. Even though the state has, in effect, conceded this point, in reviewing the record of this case along with the Palmer opinion, we are persuaded thаt the rationale expressed by the majority in Palmer was not intended to preclude consecutive mandatory minimum sentences in situations such as we have in the case at bar.
Wilson pled guilty to kidnapping and sexual battery. He used a firearm in the commission of both offenses. In order to determine whether Palmer precludes consecutive mandatory minimum sentences in this case, we must look to the facts involved in the crimes. Although the facts are not addressed in the parties’ briefs herein,1 we are able to refer to the transcript of proceedings at the time of the entry of the appellant‘s guilty pleas at which proceedings the prosecuting attorney
Your Honor, on November 19, 1982, at approximately 1:00 o‘clock in the morning the victim alleged in the Information in this case was returning to her аpartment in the City of Fort Walton Beach. As she got out of her car and was attempting to enter her apartment, she was confronted by an individual later identified as the defendant, Cornelius Wilson, at gun point and he directed her to get into his car, which she did. From there, they drove a short distance behind an area of Coral Drive in Fort Walton Beach, Florida. At that time, also with a gun in his possession and with very little conversation, he completеd the technical act of sexual battery and with penetration of the vagina. At that time, the defendant left. The victim, after waiting just a couple of minutes, ran down the street and was able to flag down a passing motorist, whо called the Police Department, and they responded.
Shortly thereafter, Wilson was arrested and gave a confession to the investigating officers.
In contrast, the defendant in Palmer walked into a funeral parlor with a firearm during a wake, ordеred the mourners to throw their money and valuables on the floor and threatened to kill them unless they complied. They did, and he took the loot and fled. On his convictions of thirteen counts of armed robbery, the trial court imposed consecutive sentences and also imposed consecutive three-year mandatory minimum terms by reason of the use of a firearm pursuant to
By this holding, we do not prohibit the imposition of multiple concurrent [emphasis in original] three-year minimum mandatory sentences upon conviction of separate offenses included under
subsection 775.087(2) , nor do we prohibit consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places. (emphasis added)
At least for a while, Palmer will, undoubtedly, spawn much activity in the appellate courts over the question of whether given offenses arise from separate incidents occurring at separate times and places. See Cochenet v. State, 445 So.2d 398 (Fla. 5th DCA 1984); Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984). However, we have no difficulty in determining that the offenses involved in the case at bar qualify for consecutive treatment under Palmer. We do not believe that we should expand the holding in Palmer to proscribe consecutive mandatory minimum sentences where the defendant kidnaps the victim in front of her residence and then transports the victim to another place where he rapes her.
Accordingly, we withdraw the last paragraph of our opinion as to Point III and affirm the trial court‘s imposition of the consecutive three-year mandatory minimum sentences.
LARRY G. SMITH, WIGGINTON and NIMMONS, JJ., concur.
ON APPELLANT‘S MOTION FOR REHEARING
PER CURIAM:
Appellant‘s motion for rehearing is denied. However, we certify, pursuant to
Whether the crimes for which the defendant was sentenced to consecutive three-year mandatory minimum terms pursuant to
Section 775.087(2), Florida Statutes , were “offenses [which arose] from separate incidents occurring at separate times and places” within the meaning of thе rule announced in Palmer v. State, 438 So.2d 1 (Fla. 1983)?
LARRY G. SMITH, WIGGINTON and NIMMONS, JJ., concur.
Notes
“The factual basis for the plea reflected that on November 19, 1982, appellant, armed with a weapon, kidnapped the victim and then sexually battered her.”
The appellee‘s brief neither contains any statement of case or facts nor mentions the appellant‘s statement of case or facts.