Henderson v. State, 96-03391.
Decision Date | 10 February 1999 |
Docket Number | No. 96-03391.,96-03391. |
Citation | 727 So.2d 284 |
Parties | Jerome HENDERSON, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Frank D.L. Winstead, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
Jerome Henderson appeals the judgment and sentence rendered after a jury found him guilty of burglary and aggravated assault. We agree with Henderson that double jeopardy prevents both convictions and that the habitual felony offender sentence was improper. Although we do not find that Henderson's other claims require reversal, we note that the prosecutor's comments during trial were improper. Accordingly, we affirm the burglary conviction and remand for resentencing.
At trial, Henderson's girlfriend testified that, although Henderson had lived with her in the past, he had moved out six months before the events in question. Henderson's girlfriend and her sister both testified that on July 30, 1995, Henderson kicked in the front door of the girlfriend's apartment, pointed a firearm at the girlfriend, and ran out when a friend arrived. The girlfriend's mother testified that Henderson then ran down the street past her house and shot the firearm three times in the air. A police officer testified that the front door of the house had been forced open, and the State entered a photograph into evidence which depicted the damage. The police also found one nine millimeter shell casing near where the mother stated she saw Henderson fire the weapon.
Henderson, a five-time convicted felon, testified that he lived at the apartment where this incident occurred and, therefore, had a right to be there. He denied entering illegally and wielding a firearm during the confrontation with his girlfriend. The jury found Henderson guilty of burglary and found that he committed an assault while armed during the burglary. The jury also found Henderson guilty of aggravated assault with a firearm. Henderson raises four issues on appeal, three of which merit discussion.
First, Henderson claims that Assistant State Attorney Mooney's remarks throughout trial constituted prosecutorial misconduct. During closing arguments, Mooney stated:
We agree that these comments constitute improper remarks about Henderson's truthfulness,1 and improperly shift the burden of proof. See Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). However, Henderson failed to preserve the errors by contemporaneous objection. See Chandler v. State, 702 So.2d 186 (Fla.1997),cert. denied, ___ U.S. ___, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998); Parker v. State, 705 So.2d 959 (Fla. 2d DCA 1998). Furthermore, in light of the evidence against Henderson, we find that the remarks did not constitute fundamental error. See Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996),cert. denied, ___ U.S. ___, 118 S.Ct. 103, 139 L.Ed.2d 58 (1997) ( ). Accordingly, Henderson has waived review of these remarks on appeal. See id. Henderson raises several additional challenges to comments made throughout the trial; however, we find that these comments were harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
Second, Henderson contends, and the State concedes, that the convictions violate double jeopardy. Florida courts have recognized that convictions for assault and burglary with assault violate double jeopardy if the assault arose out of the burglary. See Whatley v. State, 679 So.2d 1269 n. 3 (Fla. 2d DCA 1996); Austin v. State, 699 So.2d 314, 316 (Fla. 1st DCA 1997); Febles v. State, 654 So.2d 615, 616 (Fla. 3d DCA 1995). In this case, the assault consisted of Henderson pointing a firearm at his girlfriend after breaking into her house. Because the...
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...while armed with a firearm, Baldwin's dual convictions are in violation of the prohibition against double jeopardy. Henderson v. State , 727 So.2d 284 (Fla. 2d DCA 1999). Id. at 435. Three days later, on March 9, 2000, in White , the First District again relied on Henderson in finding a dou......
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D'AMBROSIO v. State, 98-2032.
...the grant of a new trial in the absence of a proper objection below.1 Some of the cases on point are as follows: Henderson v. State, 727 So.2d 284 (Fla. 2d DCA 1999) (prosecutor's remarks that defendant "would not know truth if it hit him up side the head," that acquittal would mean that wi......
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Tambriz-Ramirez v. State, 4D15–2957
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Washington v. State, 99-00913.
...at 1279. We agree with the First District's decision in Billiot. This appeal compels us to revisit our decision in Henderson v. State, 727 So.2d 284 (Fla. 2d DCA 1999), from which we now recede to the extent that it conflicts with our decision here. The State convicted Henderson of first-de......
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