Boutwell v. State, 90-133
| Decision Date | 21 June 1990 |
| Docket Number | No. 90-133,90-133 |
| Citation | 563 So.2d 798 |
| Parties | 15 Fla. L. Weekly D1660 Kenneth D. BOUTWELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Kenneth D. Boutwell, in pro. per.
No appearance for appellee.
THOMPSON, FORD L. (Retired), Associate Judge.
Boutwell appeals an order denying his Fla.R.Crim.P. 3.850 motion for post-conviction relief. We affirm in part and reverse and remand in part for further proceedings.
Boutwell was convicted of first degree murder and possession of a firearm during the commission of a felony, both arising from the same drive-by shooting incident. Boutwell proceeded to trial on the theory that another person had committed the crime. His 3.850 motion alleged that his girlfriend testified at trial that prior to the shooting Boutwell had been drinking heavily, and snorting cocaine. His counsel did not argue the defense of voluntary intoxication, nor was the jury instructed thereon.
A sentencing hearing was held and a transcript of the hearing attached to the trial court's order reflects that a sentencing guidelines scoresheet had been prepared and was considered by the court. On the first-degree murder count, Boutwell received a life sentence with a 25-year minimum mandatory sentence. On the second-degree felony of the possession of a firearm during the commission of a felony, Boutwell received 15 years incarceration, to run consecutively to the 25 year sentence.
Boutwell thereafter appealed alleging that the court erred in failing to inquire into a possible conflict of interest in defense counsel's former representation of a state witness and that the prosecutor had been allowed to make improper comments on Boutwell's silence. This court affirmed as to both issues and properly did not address the third issue of ineffective assistance of counsel. Boutwell v. State, 530 So.2d 1092 (Fla. 1st DCA) review denied, 538 So.2d 1255 (Fla.1988).
Boutwell thereafter filed a 3.850 motion, the order on which is appealed in this case, alleging as grounds that: (1) the 15 years he received for possession of a firearm during a felony exceeded the statutory maximum of three years set forth in § 775.087(2)(a), Fla. Stat. (); (2) the imposition of sentence for both first-degree murder with a firearm and possession of firearm in the commission of a felony violated double jeopardy; (3) it was error to sentence him without a scoresheet; (4) he received ineffective assistance of counsel in failing to present the defense of voluntary intoxication; and (5) he received ineffective assistance of counsel with regard to the failure to move to suppress Boutwell's confession on the grounds of coercion.
The trial court denied the motion without a hearing. It ruled that as to (1) that the 15 year sentence was within the 15 year statutory maximum for a second-degree felony; as to (2) that because first-degree murder does not require the use of a firearm and the possession of a firearm does not require the death of a human being, the offenses were separate; and as to (3) that a scoresheet had been used and that a portion of the sentencing transcript was attached reflecting the use of the scoresheet. As to Boutwell's claims for ineffective assistance of counsel, the trial court ruled that the evidence of voluntary intoxication was not sufficient to support a finding that the requisite specific intent could not be formed, and that counsel would have undermined his credibility with the jury by presenting such a defense; and as to (5) the court held that the voluntariness of the confession was disputed only by Boutwell's testimony which was not credible thus warranting the counsel's omission to argue voluntariness. No portion of the record to support the trial court's order was attached except the excerpt from the sentencing transcript. This appeal followed.
We affirm as to ground (1) in which Boutwell alleges that his sentence of 15 years for possession of a firearm exceeded the three year minimum mandatory sentence prescribed in § 775.087(2)(a), Fla. Stat. As the trial court found, Boutwell is simply confused as to the statute under which he was prosecuted. Section 790.07(2), Fla. Stat. makes it a second degree felony to display, use, threaten or attempt to use a firearm while...
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