Opinion
No. 4D10-2466
12-05-2012
WILLIE HUNTER, Appellant, v. STATE OF FLORIDA, Appellee.
Willie Hunter, Live Oak, pro se. Pamela Jo Bondi, Attorney General, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.
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Willie Hunter appeals an order summarily denying his rule 3.850 motion for post-conviction relief. We affirm in part and reverse in part. Our reversal concerns point six of Hunter's multi-point motion wherein he takes issue with counsel's treatment of the jury's confused findings. We agree with Hunter that his convictions for armed burglary of a dwelling with a dangerous weapon "as charged" and aggravated assault with a firearm "as charged" cannot stand.
Our decision is based on the specific facts of this case, coupled with the jury's specific findings associated with each offense that during the course of the crimes committed Hunter did not actually possess a firearm. At the outset, we note that this case does not involve multiple perpetrators such that the armed/firearm based components of the convictions are supported under an accomplice theory, nor does it involve permissible inconsistent verdicts or a verdict based on an uncharged theory. See, e.g., Shavers v. State, 86 So. 3d 1218 (Fla. 2d DCA 2012); State v. Hargrett, 72 So. 3d 809, 811 (Fla. 4th DCA 2011); Carswell v. State, 23 So. 3d 195 (Fla. 4th DCA 2009). Here, there was no acquittal on competing counts. Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983). Rather, the tension and inconsistency arises from specific jury findings contained within each of the two counts. Compare Mitchell v. State, 888 So. 2d 665 (Fla. 1st DCA 2004), rev. denied, 902 So. 2d 790 (Fla. 2005).
In Counts I and II Hunter was charged with armed burglary of a dwelling with a dangerous weapon and aggravated assault with a firearm. More specifically, as to Count I, he was charged with entering or remaining in the victim's dwelling with intent to commit a battery and "in the course thereof he was armed or armed himself within such structure with explosives or a dangerous weapon, to wit: a firearm, and during the commission of said Burglary, Willie Hunter did actually possess said firearm." Count II alleged aggravated assault with a deadly weapon, "more particularly described as a firearm," and again alleged that during the commission of the offense, he "did actually possess said firearm." Clearly the "actual possession" allegations were included for anticipated enhanced sentencing and the jury was instructed accordingly. Cosme v. State, 89 So. 3d 1096, 1097-98 (Fla. 4th DCA 2012), citing State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla. 1992) ("[W]hen a defendant is charged with a felony involving the 'use' of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.").
The jury responded "no" to each firearm possession question, while finding Hunter guilty "as charged." Compare Akins v. State, 838 So. 2d 637 (Fla. 5th DCA 2003) (evidence was sufficient to support conviction for armed robbery with a firearm though no firearm was recovered and none was discharged at the scene). While we agree with the State that possession of a dangerous/deadly weapon is the essential element in both offenses, and that it need not be a firearm, we have reviewed the record furnished and reject its position that evidence of the baseball bat satisfied that element in this case. Our conclusion is based on the information's specific allegations, the specific jury instructions, and the specific testimony offered by the State about the bat, which was that it was not present during the burglary and assault.
We see no benefit to remanding the matter for an evidentiary hearing as Hunter has demonstrated the requisite prejudice in connection with those convictions.
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Section 924.34, Florida Statutes (2003), provides that when an appellate court vacates a conviction but determines that the evidence establishes the defendant's guilt as to a lesser included offense, it shall reverse the judgment and direct the trial court to enter judgment for the lesser included offense. Jaimes v. State, 51 So. 3d 445, 451 (Fla. 2010). To constitutionally apply section 924.34, the jury must have found every element of the lesser offense beyond a reasonable doubt. State v. Sigler, 967 So. 2d 835, 842 (Fla. 2007). In accordance with section 924.34, we direct the trial court to enter a judgment for burglary of a dwelling for Count I and for Count II, assault. The trial court shall resentence Hunter accordingly.
Affirmed in part, Reversed in part, and Remanded. POLEN and HAZOURI, JJ., concur. CONNER, J., dissents with opinion. CONNER, J., dissenting.
I respectfully dissent as it appears the majority is creating a new exception to the general rule that inconsistent verdicts are permitted in Florida.
"As a general rule, inconsistent verdicts are permitted in Florida. Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant." State v. Powell, 674 So. 2d 731, 732-33 (Fla. 1996) (internal citations omitted). "Inconsistent verdicts are ordinarily considered to arise from a jury's exercise of its 'inherent authority to acquit' even if the facts support a conviction." State v. Cappalo, 932 So. 2d 331, 334 (Fla. 2d DCA 2006) (citing State v. Connelly, 748 So. 2d 248, 253 (Fla. 1999)).
The sole exception recognized by our supreme court from the general rule permitting inconsistent verdicts "come[s] into play when verdicts against one defendant refer to legally interlocking charges." Connelly, 748 So. 2d at 252; Fayson v. State, 698 So. 2d 825, 827 (Fla. 1997); Powell, 674 So. 2d at 733. This sole exception has become known as the "true" inconsistent verdict exception. Fayson, 698 So. 2d at 827. "True" inconsistent verdicts are "those in which an acquittal on one count negates a necessary element for conviction on another count." Gonzalez v. State, 440 So. 2d 514, 515 (Fla. 4th DCA 1983) (emphasis added). The cases frequently cited to illustrate the exception are Mahaun v. State, 377 So. 2d 1158 (Fla. 1979) (verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony), and Redondo v. State, 403 So. 2d 954 (Fla. 1981) (defendant could not be convicted of unlawful possession of a firearm during the commission of a felony where the jury failed to find defendant guilty of any felony).
As observed by the Second District in Cappalo: "Inconsistent verdicts on factually interlocking charges, which are permissible, are distinguished from impermissible inconsistent verdicts on legally interlocking charges." 932 So. 2d at 334. Thus, in Cappalo, the jury verdict that Cappalo was not guilty by reason of insanity on charges of burglary and grand theft was not impermissibly inconsistent with verdict of guilty on aggravated fleeing and eluding and attempted aggravated assault, where all the charges arose out of one criminal episode.
In this case, Hunter proceeded to trial on the following charges: armed burglary of a dwelling with a deadly weapon (count 1), two counts of aggravated assault with a firearm (counts 2 and 3), and battery (count 4). Counts 1, 2 and 4 had the same victim; count 3 alleged a different victim. The jury acquitted Hunter on count 3 (aggravated assault), but found him guilty of counts 1, 2 and 4, as charged, involving the same victim. In rendering its verdict, the jury was asked to answer an interrogatory for counts 1 and 2: "During the course of the crime committed, did the defendant, Willie Hunter, actually possess a firearm?" The jury responded "No" each time.
Hunter was also charged with possession of a firearm by a convicted felon, but that charge was severed for trial.
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As to counts 1, 2, and 4, the jury did not acquit Hunter of anything; thus, the "true" inconsistent verdict exception does not apply. However, the jury determined that Hunter did not actually possess a firearm. Actual possession of a firearm was not an element of any of the crimes charged against Hunter, and the jury was not instructed that actual possession was an element of the crimes. As to count 1, burglary of a dwelling with a deadly weapon, the jury was instructed:
The punishment provided by law for the crime of burglary is greater if the burglary under certain aggravating circumstances.
Therefore, if you find the defendant guilty of burglary, you must then consider whether the State further proved those circumstances.
If you find that in the course of committing the burglary the defendant was armed or armed himself within the dwelling with a dangerous weapon, to wit: a firearm, you should find him guilty of burglary while armed with a dangerous weapon.
A similar aggravation instruction was given for trespass as a lesser included offense of count 1.
Because the answers to enhanced penalty interrogatories for counts 1 and 2 are factually inconsistent with finding Hunter guilty "as charged" on each count, the majority now creates a new exception to the general rule allowing inconsistent verdicts. In this day and age, most jurors know there are mandatory minimum sentences for use or possession of a firearm during the commission of crimes. In my view, the jury's verdict was not legally inconsistent; instead, the jury was simply exercising its pardon power because it felt on the facts of the case, a mandatory sentence or increased punishment was not warranted.
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Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 04-12598 CF10A.
Willie Hunter, Live Oak, pro se.
Pamela Jo Bondi, Attorney General, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.