Castro v. State, 84-1483
| Decision Date | 02 July 1985 |
| Docket Number | No. 84-1483,84-1483 |
| Citation | 472 So.2d 796,10 Fla. L. Weekly 1630 |
| Parties | 10 Fla. L. Weekly 1630 Alcides CASTRO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and May L. Cain, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Diane Leeds and Michael J. Neimand, Asst. Attys. Gen., for appellee.
Before NESBITT, BASKIN and FERGUSON, JJ.
This appeal arises from Alcides Castro's conviction for attempted first degree murder with a firearm, armed burglary with an assault with a firearm, armed robbery with a firearm, and carrying a concealed firearm. Castro received three consecutive ninety-year sentences for the attempted murder, burglary, and robbery convictions and a consecutive one-year sentence for the concealed firearm conviction. Because a firearm was used in the commission of the first three crimes, the trial court imposed three three-year minimum mandatory sentences. The minimum mandatory sentences for burglary and robbery were to be concurrent with each other but consecutive to the minimum mandatory sentence imposed for the attempted murder.
The events leading to Castro's arrest and conviction commenced when 78-year old Teresa Almaguer became aware of two armed intruders in her home. The intruders robbed Mrs. Almaguer at gunpoint, taking her chain, ring, and glasses. Officer Michael Manning, responding to a police call, knocked on the door of the Almaguer house. Castro opened it slightly and peered out. As Officer Manning began to question him, Castro pushed the door open and fired his weapon, striking Officer Manning in the thigh. Castro was arrested, charged, and tried by a jury. Following his conviction and sentencing, he filed this appeal.
On appeal Castro challenges the trial court's refusal to submit separate verdict forms for attempted premeditated murder and attempted felony murder; the court's imposition of consecutive minimum mandatory sentences for offenses occurring during a continuous criminal episode; the court's denial of his motion to suppress his confessions; and the trial court's reading of the jury instructions on attempted murder. We affirm the convictions and sentences because we find no reversible error.
Castro contends that the trial court erred in denying his request for an attempted first degree murder verdict form containing separate boxes for attempted premeditated murder and attempted felony murder. He maintains that because a conviction and sentence for attempted felony murder would preclude imposition of a sentence for the underlying felony, he was entitled to know the theory behind the jury's verdict of guilt. Thus, he suggests, the trial court may have erred in sentencing him for both the underlying felonies of robbery and burglary in addition to the attempted murder.
While we agree that the better practice would include submission of a special verdict form permitting a jury to disclose its grounds for finding a defendant guilty of first degree murder, we find no error in the court's refusal to submit the form. The Florida Supreme Court has considered the issue.
[W]e recognize there could be improvement in the manner in which a case is presented to the jury on alternate theories of felony murder and premeditated murder. One possible solution would be the use of special verdict forms for such cases, but we are reluctant to decide the wisdom of such a change without the opportunity for full comment from the bench, bar, and other interested parties. Therefore, we request this Court's Committee on Standard Jury Instructions in Criminal Cases, in cooperation with the Criminal Procedure Rules Committee of The Florida Bar, and any other interested person or association, to submit suggestions on this issue to the Court by July 1, 1981. If these suggestions necessitate any change of rule, instruction, or verdict form, such recommended changes should also be included. It is our intention to allow interested persons until September 15, 1981, to respond to any recommendations received in this matter. (emphasis supplied)
Matter of Use by Trial Courts of Standard Jury Instructions, 431 So.2d 594, 597-98 (Fla.1981). The court has not mandated the use of special verdict forms. The trial judge was thus under no obligation to submit a special verdict form, and the matter rested within his sound discretion.
Furthermore, the record reveals that the evidence supports a finding of premeditation which would sustain the imposition of sentences for the robbery and burglary convictions in addition to the attempted murder. See Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); McCampbell v. State, 421 So.2d 1072 (Fla.1982); Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); cf. State v. Hegstrom, 401 So.2d 1343 (Fla.1981) ().
Castro next argues that his convictions arose from a single criminal episode precluding, under Palmer v. State, 438 So.2d 1 (Fla.1983), the imposition of consecutive three-year minimum mandatory sentences. We reject Castro's argument based upon the trial court's finding that:
[T]he events which led to the defendant's conviction consisted of two different and distinct series of events. The first series of events was the entry of the defendant into the victim's home at gunpoint and the robbery of the victim, Theresa Almaguer, at gunpoint. The second series of events involved in the case is when Officer Michael Manning responded to the victim's house and was shot by the defendant. It is the finding of this Court that the acts of the Burglary and Robbery were distinct and separate from the act of shooting the police officer.
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