Dow v. State

• Decision Date: 25 November 1992
• Citation: 610 So.2d 23
• Parties: 17 Fla. L. Week. D2653 Richard DOW, Appellant, v. STATE of Florida, Appellee. Michael DOW, Appellant, v. STATE of Florida, Appellee. Eddie HARVEY, Appellant, v. STATE of Florida, Appellee. 90-00392, 90-00413 and 90-00415.
• Court: Florida District Court of Appeals

Page 23

610 So.2d 23

17 Fla. L. Week. D2653

Richard DOW, Appellant, v. STATE of Florida, Appellee.

Michael DOW, Appellant, v. STATE of Florida, Appellee.

Eddie HARVEY, Appellant, v. STATE of Florida, Appellee.

90-00392, 90-00413 and 90-00415.

District Court of Appeal of Florida, Second District.

Nov. 25, 1992.

James Marion Moorman, Public Defender, and Andrea Norgard, Asst. Public Defender, Bartow, for appellant Richard Dow.

Nick J. Sinardi, Tampa, for appellant Michael Dow.

Thomas J. Hanlon, Tampa, for appellant Eddie Harvey.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Wendy Buffington, Asst. Atty. Gen., Tampa, for appellee in case no. 90-0039; Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee in case no. 90-00413; and David R. Gemmer, Asst. Atty. Gen., Tampa, for appellee in case no. 90-00415.

ALTENBERND, Judge.

In these appeals, which the court has consolidated on its own motion, the three defendants appeal their judgments and sentences arising from a series of "home invasions" that occurred between November 1988 and February 1989. The defendants were tried in a consolidated trial with three separate juries. We affirm all convictions. After reviewing the record in each case, we conclude that any errors complained of were harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We reverse the sentences imposed upon Richard Dow (No. 90-00392) and Eddie Harvey (No. 90-00415). In each of these cases, the trial court imposed incarceration for a term of years to be followed by concurrent life terms of imprisonment. These sentences represent departures from the recommended guidelines sentence of life imprisonment. Rease v. State, 493 So.2d 454 (Fla.1986); Speights v. State, 495 So.2d 882 (Fla. 2d DCA), review denied, 501 So.2d 1283 (Fla.1986). Because the trial court did not realize it was departing from the sentencing guidelines in these cases, it may impose departure sentences on remand if supported by valid written reasons. State v. Vanhorn, 561 So.2d 584 (Fla.1990).

We affirm Michael Dow's sentences (No. 90-00413), because the trial court's written reasons for departure were valid. See State v. Barfield, 594 So.2d 259 (Fla.1992); Hines v. State, 587 So.2d 620 (Fla. 2d DCA 1991).

Convictions and sentences imposed in case number 90-00413 affirmed. Convictions in case numbers 90-00392 and 90-00415 affirmed, but sentences imposed in those cases reversed and the cases remanded for resentencing.

PARKER, A.C.J., concurs.

PATTERSON, J., concurs specially with opinion.

PATTERSON, Judge, specially concurring.

I concur because, notwithstanding the hazardous use of multiple juries, the defendants have failed to demonstrate any reversible error. The trial court invoked this procedure because a Bruton ¹ problem existed among all three defendants. I write to dispel any notion that we embrace the use of dual or multiple juries. However, I recognize the needs of the trial courts in attempting to deal with overcrowded trial calendars. In this case, the use of three juries resulted in a considerable savings of time because of the number of charges and witnesses involved. Nonetheless, the procedure is inherently error prone and should be discouraged. ²

1 Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

2 Numerous other courts have expressed similar concerns. See, e.g., People v. Harris, 47 Cal.3d 1047, 255 Cal.Rptr. 352, 767 P.2d 619 (1989); State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986); State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984); State v. Corsi, 86 N.J. 172, 430 A.2d 210 (1981); Scarborough v. State, 50 Md.App. 276, 437 A.2d 672 (1981).