Enmund v. State

• Decision Date: 30 November 1984
• Docket Number: No. 84-897,84-897
• Citation: 459 So.2d 1160
• Parties: Earl ENMUND, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1160

459 So.2d 1160

Earl ENMUND, Appellant, v. STATE of Florida, Appellee.

No. 84-897.

District Court of Appeal of Florida Second District.

Nov. 30, 1984.

Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Judge.

The defendant challenges his sentences for two first degree murders committed during the course of a robbery, and his conviction for the robbery.

The defendant was charged with the first degree murders of Thomas Henry Kersey and Eunice May Kersey and the robbery of Thomas Henry Kersey. The state's evidence at trial showed that the Kerseys were killed by Sampson Armstrong while he and Jeanette Armstrong were robbing Mr. Kersey and that the defendant aided and abetted the robbery by driving the getaway car. The jury found the defendant guilty of the murders and the robbery and recommended the death penalty. The defendant was adjudicated guilty and sentenced to death for the murders and to a concurrent term of life imprisonment for the robbery. After an affirmance by the Supreme Court of Florida, the Supreme Court of the United States reversed the death sentences and remanded. Enmund v. State, 399 So.2d 1362 (Fla.1981); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). On remand, our supreme court vacated the death sentences and remanded to the trial court with directions to impose, for each of the two first degree murder convictions, a sentence of life imprisonment without eligibility for parole for twenty-five years. The court's decision gave the trial judge discretion to decide whether the life sentences would be served concurrently or consecutively. Enmund v. State, 439 So.2d 1383 (Fla.1983).

At sentencing following remand, the defendant asked the trial judge to correct an illegal sentence by vacating the sentence for robbery as the underlying felony for the felony murders. The trial judge granted the motion and vacated the defendant's sentence for robbery. However, he allowed the conviction for robbery to stand. The trial judge then imposed two consecutive life sentences for the murders, with twenty-five years minimum mandatory on each sentence so that the defendant would not be eligible for parole for fifty years. This appeal by the defendant followed.

The defendant argues that the trial judge erred by imposing consecutive minimum mandatory sentences for two offenses committed in a single criminal episode, and that the trial judge also erred by adjudicating the defendant guilty of both felony murder and the underlying felony. We agree on both points.

In Palmer v. State, 438 So.2d 1 (Fla.1983), our supreme court held that Florida law does not authorize a trial court to impose consecutive three-year minimum mandatory sentences under section 775.087(2), Florida Statutes (1983), for offenses arising from a single criminal transaction or episode. We believe that the court's reasoning applies as well to consecutive minimum mandatory sentences of twenty-five years for two murders committed in the course of one criminal episode. In fact, in the Palmer case, the court drew a parallel to the statute mandating a minimum sentence of twenty-five years upon conviction of a capital felony. Accordingly, we hold that section 775.082(1), Florida Statutes (1983), authorizing a minimum mandatory sentence of twenty-five years before eligibility for parole on conviction of a capital felony, does not authorize consecutive minimum mandatory terms of twenty-five years each in connection with two consecutive life imprisonments for two murders committed during the same criminal episode.

The defendant's second point causes us more difficulty. In State v. Harris, 439 So.2d 265 (Fla. 2d DCA 1983), petition...