Hegstrom v. State

Citation388 So.2d 1308
Decision Date07 October 1980
Docket NumberNo. 77-2480,77-2480
PartiesDennis Andrew HEGSTROM, Appellant, v. The STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.

Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Hegstrom was charged with robbery and first-degree murder alleged to have been committed with a premeditated design or while engaged in the perpetration of such robbery. He was convicted of both crimes and sentenced to life imprisonment on the murder charge and a consecutive one-hundred-year term on the robbery charge.

It was undisputed that the killing occurred during the course of the robbery. The only evidence adduced by the State respecting Hegstrom's state of mind consisted of his conflicting out-of-court statements that (a) he knifed the victim in a sudden fit of anger and (b) he plunged the knife in the victim accidentally; and testimony that at the time of the robbery, Hegstrom was under the influence of drugs. The State's other evidence proved only a premeditated design to commit robbery, not murder. On this record we conclude there was no evidence of premeditated design to support the jury's verdict of first-degree murder on that theory. Our conclusion is bolstered by the fact that the near total thrust of the State's closing argument to the jury dealt with the felony murder theory, and by the fact that during its deliberations the jury, in a note to the trial court, asked: "If we agree that a robbery occurred, is it or is it not possible to reach a third degree verdict?" 1 The focus of the State and the jury was obviously felony murder.

Since the first-degree murder conviction is sustainable only on a felony murder theory, we must reverse and vacate Hegstrom's conviction 2 for robbery, the felony which served as the basis for the felony murder conviction. Mahaun v. State, 377 So.2d 1158 (Fla.1979); State v. Pinder, 375 So.2d 836 (Fla.1979); Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980); Wright v. State, 380 So.2d 550 (Fla. 2dDCA 1980); Harkins v. State, 380 So.2d 524 (Fla. 5thDCA 1980). See also McRae v. State, 383 So.2d 289 (Fla. 2dDCA 1980).

Affirmed in part; reversed in part.

1 The trial court's response to the jury, through reinstruction, is the subject of a separate point on appeal, which we find to be without merit.

2 In our view, State v. Pinder, infra, requires that the conviction not merely the sentence, be set aside. Prior to Pinder, the Florida Supreme Court, faced with a conviction of a lesser included offense, without discussion left the conviction undisturbed and set aside the sentence. See, e. g., Stevens v. State, 372 So.2d 1370 (Fla.1979); Johnson v. State, 366 So.2d 418 (Fla.1978); and Cone v. State, 285 So.2d 12 (Fla.1973). See also Gonzalez v. State, 367 So.2d 1008 (Fla.1979). Pre-Pinder District Court decisions were in silent disarray. Compare Ennis v. State, 364 So.2d 497 (Fla. 2dDCA 1978); Hernandez v. State, 278 So.2d 307 (Fla. 2dDCA 1973); Yost v. State, 243 So.2d 469 (Fla. 3dDCA 1971) (setting aside the sentence only), with Heisterman v. State, 327 So.2d 839 (Fla. 3dDCA 1976); and Sloan v. State, 323 So.2d 278 (Fla. 2dDCA 1975) (setting aside the judgment). Only Kimbrough v. State, 356 So.2d 1294 (Fla. 4thDCA 1978), and, to a lesser extent, Taylor v. State, 330 So.2d 44 (Fla. 1stDCA 1976), openly addressed the validity vel non of the judgment and concluded that the judgment could not stand.

While the United States Supreme Court had held that the double jeopardy clause protected against multiple punishments and prosecutions for the same (or lesser included) offense, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), it left undecided whether the double jeopardy clause precludes a conviction of the same or a lesser included offense where it is prosecuted in a single proceeding with the higher offense. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (19...

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13 cases
  • Damon v. State, 77-1981
    • United States
    • Court of Appeal of Florida (US)
    • May 12, 1981
    ...So.2d 808 (Fla. 1st DCA 1980) (enhancement of third-degree murder sentence due to use of firearm-aggravated assault); Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980) (first degree felony murder-robbery); Hillery v. State, 391 So.2d 776 (Fla. 4th DCA 1980) (first degree felony murder-rob......
  • Faison v. State, 79-2250
    • United States
    • Court of Appeal of Florida (US)
    • May 19, 1981
    ...836 (Fla.1979), 5 the sexual battery conviction cannot stand. While Faison was not sentenced on the latter charge, Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980), review granted, Fla. Case no. 59,893 (1981), requires that the adjudication for that offense be set aside. Accord, e. g., J......
  • Davis v. State, 80-1656
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1980
    ...(Fla.1979); Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980) (Case No. 80-438, opinion filed November 25, 1980); Hegstrom v. State, 388 So.2d 1308 (Fla. 3d DCA 1980). The guilty plea, however, is not an impediment to Davis' attack on the sentence. Robinson v. State, 373 So.2d 898 ...
  • State v. Hegstrom
    • United States
    • United States State Supreme Court of Florida
    • July 30, 1981
    ...this decision. It is so ordered. SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur. 1 Hegstrom v. State, 388 So.2d 1308 (Fla. 3d DCA 1980).2 King v. State, 390 So.2d 315 (Fla.1980), cert. denied, --- U.S. ----, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981); Wright v. St......
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