Brown v. State, 90-02444

• Decision Date: 15 April 1992
• Docket Number: No. 90-02444,90-02444
• Citation: 599 So.2d 132
• Parties: 17 Fla. L. Weekly D997 Carlton J. BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 132

599 So.2d 132

17 Fla. L. Weekly D997

Carlton J. BROWN, Appellant, v. STATE of Florida, Appellee.

No. 90-02444.

District Court of Appeal of Florida,

Second District.

April 15, 1992.

James Marion Moorman, Public Defender, and Timothy A. Hickey, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Acting Chief Judge.

Carlton J. Brown, convicted of two counts of aggravated battery, appeals his sentences imposed pursuant to the habitual offender statute, section 775.084(4)(b), Florida Statutes (Supp.1988). The trial court sentenced him to two consecutive terms of thirty years each, with a ten-year minimum mandatory portion of each sentence, also to be served consecutively. Brown contends that it was error to impose the minimum mandatory terms consecutively as well as to impose the separate thirty-year terms consecutively, citing Palmer v. State, 438 So.2d 1 (Fla.1983). His Palmer argument is based upon the fact that there is clearly only one criminal episode here, a short but violent knife fight with two victims injured during the fight. We affirm in part and reverse in part.

The supreme court has recently clarified the issue whether minimum mandatory terms of imprisonment, imposed pursuant to a sentencing enhancement statute such as section 775.084, can be ordered to be served consecutively when the crimes occurred during a single criminal episode. In Daniels v. State, 595 So.2d 952 (Fla.1992), the supreme court held that under such circumstances, the minimum mandatory portions of the sentences must be ordered to be served concurrently where there is no distinction in time or place between the offenses. However, where minimum mandatory sentencing is not involved, Daniels reiterates that Palmer has never prohibited consecutive sentences even though the crimes were committed during a single episode.

Accordingly, we affirm that part of the sentencing order imposing consecutive thirty-year terms, but reverse the imposition of consecutive ten-year minimum mandatory portions of those thirty-year sentences, and we remand for imposition of concurrent ten-year minimum mandatory sentences.

Affirmed in part and reversed in part.

FRANK, J., concurs.

ALTENBERND, J., concurs specially.

ALTENBERND, Judge, concurring.

I fully concur in the portion of the court's opinion that reverses the consecutive minimum mandatory terms. With great reluctance, I must also agree that the trial court did not abuse its discretion by imposing consecutive sentences. I doubt, however, that the consecutive sentences in this specific case are a good use of our tax dollars. On remand the trial court will have the opportunity to review the wisdom of these legal sentences under rule 3.800(b).

On April 8, 1989, at approximately 10 p.m., Mr. Brown and two other men were working on a car in a shed in their residential neighborhood. The men had been drinking beer and gin. Mr. Brown and one of the other men, Mr. Lee, began to argue. Mr. Brown pulled a knife and stabbed Mr. Lee. The other man, Mr. Hough, tried to knock Mr. Brown to the ground. In the struggle, the knife also cut Mr. Hough. Both victims suffered significant injuries.

The state did not argue that Mr. Brown intended to harm both men. It conceded that Mr. Brown only intended to harm Mr. Lee. It properly relied upon the concept of transferred intent to charge Mr. Brown with an offense arising out of Mr. Hough's injuries. See Coston v. State, 139 Fla. 250, 190 So. 520 (1939); Valassakis v. State, 187 So.2d 74 (Fla. 1st DCA 1966). The jury convicted the defendant on both counts of aggravated battery with a deadly weapon.

Mr. Brown's scoresheet recommended a sentence of up to 12 years and permitted a sentence of 7 to 17 years. The trial court, however, declared Mr. Brown to be a habitual violent felony offender and ordered him to serve two consecutive 30-year sentences. Thus, the defendant is sentenced to 60 years' incarceration. At oral argument, the state represented that this sentence will result in a minimum of 36 years' incarceration without regard to the contested minimum mandatory terms. Since Mr. Brown is 35 years old, he will be imprisoned until he is at least 71 years old.

The sentencing judge is clearly given discretion to order sentences to be served concurrently or consecutively. Sec. 775.021(4), Fla.Stat. (1989). While I cannot say that no reasonable judge would have imposed these sentences consecutively, I suspect that many experienced judges would have concluded that concurrent sentences were a better allocation of the state's limited penal resources in this case. Despite the significant cost to taxpayers generated by lengthy sentences, the legislature currently encourages trial judges to impose long sentences for defendants with only moderate criminal records. See Sec. 775.0841, Fla.Stat. (1991). Because of this statute and because the evidence in this case establishes that one of the victims sustained a severe injury, I conclude that I must affirm a sentence that I seriously doubt I would have imposed.

This case highlights the broad sentencing discretion which trial courts now possess. Under the framework this court recently explained in King v. State, 597 So.2d 309 (Fla. 2d DCA 1992), a trial judge could sentence Mr. Brown, without any special explanation, to as little as 7 years' incarceration with normal gain time, or to as much as 60 years' incarceration with limited gain time. Unlike earlier penal systems in Florida, the Parole Commission does not have broad authority essentially to reevaluate this sentence after Mr. Brown has been in prison for a few years.

In the absence of some reevaluation process by a parole board, the broad discretion now given to our trial judges results in a penal system in which individual trial judges are given the power to commit and spend vast quantities of tax dollars over a long period of time. If the calculations of the Department of Corrections are useful for the future, the trial judge in this case has committed the state to spend up to $788,400 on Mr. Brown's room and board. See Jones v. State, 589 So.2d 1001 (Fla. 3rd DCA, 1991) (Ferguson, J., dissenting). If Mr. Brown is incarcerated for the minimum 36 years that the state predicts, the taxpayers will spend $473,040 on his stay in prison. Over half of those funds will be spent more than 15 years from now when Mr. Brown is more than 50 years old. Thus, the current system gives the trial judge almost unbridled discretion to spend funds and commit prison space in 2012 A.D., which may well be needed at that time to house people more dangerous than a 55-year-old Mr. Brown. It seems very unwise for the...