Delorme v. State, 88-2872

• Decision Date: 05 June 1990
• Docket Number: No. 88-2872,88-2872
• Citation: 562 So.2d 398
• Parties: 15 Fla. L. Weekly D1523 Darcy DELORME, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 398

562 So.2d 398

15 Fla. L. Weekly D1523

Darcy DELORME, Appellant, v. The STATE of Florida, Appellee.

No. 88-2872.

District Court of Appeal of Florida Third District.

June 5, 1990.

Bennett H. Brummer, Public Defender, and Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson, and Susan S. Lerner, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Anita J. Gay, Asst. Atty. Gen., for appellee.

Before NESBITT, LEVY and GERSTEN, JJ.

GERSTEN, Judge.

Appellant, Darcy Delorme, appeals his conviction and sentence for second degree murder and aggravated battery. We affirm.

This case involves a particularly brutal murder. The exact details of the murder do not enhance this opinion and are omitted. The day after the victim had been killed, appellant, a purported friend of the victim, allegedly "discovered" her body. Because appellant claimed to have seen her alive the previous evening, the police considered him to be a witness and asked for a statement. Appellant was neither arrested, nor advised of his rights.

While appellant was giving his statement, an officer noticed blood stains on appellant's clothing, blood under his fingernails, as well as scratches on his body. Appellant was then advised of his rights and questioned further. Appellant admitted killing the victim. The police then obtained a search warrant for appellant's residence and discovered bloody clothing belonging to appellant, as well as keys to the victim's trailer and car.

Appellant contends that: (1) the statements he gave police prior to his being advised of his rights should have been suppressed; (2) his simultaneous conviction for aggravated battery is improper because it arises from the same incident; and, (3) he was improperly sentenced because: (a) excessive force should not have been used as a basis for departing from the sentencing guidelines; and (b) the aggravated battery should not have been added to the total score as a separate conviction, as well as used to reclassify the murder conviction.

Appellee, State, asserts that at the time of the statements at issue, appellant was neither under arrest nor a suspect, and that the statements had been freely and voluntarily given. Further, State contends that appellant's conviction for aggravated battery was a lesser included offense of a sexual battery which he committed before killing the victim, and therefore proper.

We reject appellant's first contention that the statements he gave the police should have been suppressed. Voluntariness of a confession need be established only by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The totality of the circumstances in this case demonstrate that appellant was not in custody at the time he gave the statements he seeks to suppress. Accordingly, we agree with the trial court's conclusion that appellant's statements were freely and voluntarily given, and therefore admissible. See Perez v. State, 536 So.2d 359 (Fla. 3d DCA 1988).

We also reject appellant's second contention that his simultaneous conviction for aggravated battery is improper. The prohibition against...