Hargrove v. State, 95-1579

• Decision Date: 19 June 1996
• Docket Number: No. 95-1579,95-1579
• Parties: 21 Fla. L. Weekly D1418 Nathaniel HARGROVE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1010

675 So.2d 1010

21 Fla. L. Weekly D1418

Nathaniel HARGROVE, Appellant, v. STATE of Florida, Appellee.

No. 95-1579.

District Court of Appeal of Florida,

Fourth District.

June 19, 1996.

Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

We affirm the conviction. Our difficulty lies in reversing--as we must--the mandatory minimum sentence for the use of a firearm. With great reluctance, we are simply unable to read State v. Overfelt, 457 So.2d 1385 (Fla.1984), in any reasonable way that would allow the mandatory minimum sentence in this case to stand. We thus explain why we believe that result unpalatable.

Defendant was charged with murder "by shooting [victim] with a firearm." R. 665. In his opening statement, the prosecutor told the jury that the evidence would show that, after being taunted by the victim, defendant "fired at least two and possibly three shots," and that "two shots we know entered the brain of [the victim] killing him instantly." In his opening statement, defense counsel began by stating that there were some "inconsequential" differences with the prosecutor's opening statement of the facts, but his entire statement to the jury was devoted to the insanity defense. In other words, he did not suggest that defendant had not shot the victim, or imply that there was any evidence suggesting that someone else shot him, or that he died by something other than a gunshot.

During trial, two other persons in the truck with the victim testified to the shooting. At least three witnesses, including one police officer, testified that defendant told them immediately afterwards that he shot the victim. After his arrest and Miranda warnings, defendant gave a confession in which he stated that he shot the victim because the victim had carried on an affair with defendant's wife. Although no weapon was ever found, the investigating officers discovered bullets in defendant's room. The defense called no witnesses and adduced no evidence. In closing argument, defense counsel told the jury that the only issue for them to decide was whether defendant was legally insane at the time of the shooting. The verdict found defendant guilty, "as to Count I of the Indictment," [sic-Information?] of second degree murder.

In Overfelt, the court said:

"The district court held, and we agree, 'that before a trial court may enhance a defendant's sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.' [Overfelt v. State], 434 So.2d at 948 [(Fla. 4th DCA 1983)]. See also Hough v. State, 448 So.2d 628 (Fla. 5th DCA 1984); Smith v. State, 445 So.2d 1050 (Fla. 1st DCA 1984); Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982); Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981). But see Tindall v. State, 443 So.2d 362 (Fla. 5th DCA 1983). The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury's function to be the finder of fact with regard to matters concerning the criminal episode. To allow a judge to find that an accused actually possessed a firearm when committing a felony in order to apply the enhancement or mandatory sentencing provisions of section 775.087 would be an invasion of the jury's historical function and could lead to a miscarriage of justice in cases such as this where the defendant was charged with but not convicted of a crime involving a firearm." [emphasis supplied].

457 So.2d at 1387. As the court further explained,

"In this case Overfelt was charged with, among other crimes, two counts of attempted first-degree murder. On these charges the jury found him guilty of the lesser included offenses of attempted third-degree murder on one count and aggravated assault on the other. The trial judge reclassified the crime of attempted third-degree murder as a felony of the third degree, relying upon section 775.087(1), which authorizes the reclassification of the degree of a felony whenever the defendant in committing the felony carries, displays, uses, threatens, or attempts to use...