From Casetext: Smarter Legal Research

Perry v. State

District Court of Appeal of Florida, Fourth District
Feb 20, 2008
973 So. 2d 1289 (Fla. Dist. Ct. App. 2008)

Summary

disapproving stacking minimum mandatories for kidnapping, carjacking, sexual battery, and aggravated fleeing and eluding where offenses did not occur during different criminal episodes and appellant used, but never fired, his gun

Summary of this case from Bonner v. State

Opinion

No. 4D06-4291.

February 20, 2008.

Appeal from the Circuit Court, Seventeenth Judicial Circuit, Broward County, Peter M. Weinstein, J.

Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.


Appellant Willie Perry timely appeals convictions of kidnapping, carjacking with a firearm, sexual battery, and aggravated fleeing and eluding a police officer.

We are not persuaded by Perry's argument that the trial court erred in restricting defense counsel's closing argument as to whether co-defendant Johnson could have been tried as an adult. Though defense counsel was not allowed to specifically argue that Johnson could have been tried as an adult, counsel made it clear to the jury that Johnson was not prosecuted in the same way Perry was. Even if there was error, no prejudice resulted.

We remand to correct a sentencing error. The jury found that Perry actually possessed a firearm during the course of the armed kidnapping and the carjacking. For his possession of a firearm, the trial court imposed a ten-year mandatory minimum for armed kidnapping and a consecutive ten-year mandatory minimum for carjacking with a firearm. Case law interpreting section 775.087(2)(d), Florida Statutes, holds that imposition of consecutive mandatory minimum sentences of any duration is prohibited in a case involving a single criminal episode during which a firearm is used but not fired. See Church v. State, 967 So.2d 1073 (Fla. 2d DCA 2007); see also State v. Sousa, 903 So.2d 923 (Fla. 2005); Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2007). As the firearm in the instant case was never fired, and the kidnapping and carjacking were not separated by any temporal or spatial breaks, the trial court erred in sentencing Perry to consecutive ten-year mandatory minimum sentences as they were part of a single criminal episode.

We therefore affirm Perry's convictions but reverse for re-sentencing as to the consecutive ten-year mandatory minimum sentences for armed kidnapping and carjacking with a firearm.

Affirmed and Remanded.

STONE, POLEN and MAY, JJ, concur.


Summaries of

Perry v. State

District Court of Appeal of Florida, Fourth District
Feb 20, 2008
973 So. 2d 1289 (Fla. Dist. Ct. App. 2008)

disapproving stacking minimum mandatories for kidnapping, carjacking, sexual battery, and aggravated fleeing and eluding where offenses did not occur during different criminal episodes and appellant used, but never fired, his gun

Summary of this case from Bonner v. State
Case details for

Perry v. State

Case Details

Full title:Willie PERRY, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Fourth District

Date published: Feb 20, 2008

Citations

973 So. 2d 1289 (Fla. Dist. Ct. App. 2008)

Citing Cases

Denson v. State

See also Morgan v. State, 137 So.3d 1075 (Fla. 3d DCA 2014). But see Roberts v. State, 990 So.2d 671 (Fla.…

Bonner v. State

a. 1986).See State v. Ames , 467 So.2d 994, 996 (Fla. 1985) (disapproving stacking two mandatory minimum…