Kennedy v. State
| Decision Date | 26 June 1990 |
| Docket Number | No. 88-2077,88-2077 |
| Citation | 564 So.2d 1127 |
| Parties | 15 Fla. L. Weekly D1724 William Thomas KENNEDY, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Russell L. Healey of Lacy Mahon, Jr. and Mark H. Mahon, P.A., Jacksonville, for appellant.
Robert A. Butterworth, Atty. Gen. and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
William Thomas Kennedy, Jr. was found guilty by a jury of conspiracy to commit armed robbery with a firearm, armed robbery with a firearm, three counts of aggravated assault with a deadly weapon, four counts of kidnapping while armed with a firearm and armed burglary. On the conspiracy conviction he was sentenced to a 30 year term of imprisonment with a three year mandatory minimum period. He received a sentence of life imprisonment with a three year mandatory minimum on the armed robbery count and life imprisonment on each of the four armed kidnapping counts and the armed burglary count. His conviction of three counts of aggravated assault resulted in sentences of five years each in the Department of Corrections. All sentences imposed were made to run concurrently.
In his appeal, Kennedy raises four issues. First, he argues that the trial court erred in sentencing him to a 30 year period of confinement with a three year mandatory minimum for the offense of conspiracy to commit robbery while armed with a firearm. Next, he maintains that it was error for the trial judge to impose a three year mandatory minimum sentence on his conviction for armed robbery with a firearm. With respect to the armed kidnapping counts, Kennedy asserts that his motions for judgment of acquittal at the close of the state's case and at the close of all the evidence should have been granted and, further, that it was error for the trial court to sentence him to life in prison on the armed kidnapping counts under the facts of the case. We affirm in part, reverse in part and remand.
This case begins with a reputed drug dealer who persuaded appellant Kennedy and two others that the Wopshall residence in rural McAlpin in Suwannee County, Florida, contained $100,000 in cash and at least five kilos of cocaine. He knew of the money and drugs, said the dealer, because residents of the Wopshall home were involved with him in a drug deal turned sour. Subsequently, the dealer and Kennedy and his two companions agreed among themselves that Kennedy and his friends would leave their Kingsland, Georgia, homes, meet with the drug dealer in Florida and then travel to McAlpin to "hit" the Wopshall home.
Sometime around 9:00 p.m. on the evening of January 4, 1988, after having the Wopshall house under surveillance for a good part of the day, Kennedy, dressed in a blue suit, left his two co-conspirators crouched down in the back of his blue Isuzu Trooper vehicle and walked over to an outbuilding used as a workshop where Mr. Wopshall was working with a young man, Tim Webb, the son of Wopshall's business partner. Kennedy engaged Wopshall in a land purchase discussion and, under the ruse of exchanging information, managed to lure him over to the blue Isuzu. There, Kennedy drew a pistol and held it on Wopshall while his two confederates, one masked, got out of the vehicle. With Kennedy holding the pistol, the three of them forced Wopshall to accompany them the 50 or so yards to his residence. Apparently, this activity did not engage Tim Webb's attention. Once inside the house, Kennedy handed the pistol to one of his companions as he put a stocking mask over his own face. Thereafter, Kennedy and the other accomplice ransacked the Wopshall home looking for money and drugs while the armed accomplice held Wopshall at gunpoint in the dining room.
Unaware of what was transpiring inside, Mrs. Wopshall came home shortly after 10:00 p.m. and, with Tim Webb, entered the house through the rear kitchen doorway. The armed accomplice trained his gun on them as Mr. Wopshall motioned for them to join him in the dining room. Holding the cocked gun on the Wopshalls and Webb, one of Kennedy's accomplices then threatened Mr. Wopshall's life and the other stated that if Wopshall did not open the safe "in 30 seconds", he would "blow Mrs. Wopshall's head off". Wopshall, pleading that he did not have the combination of the safe at hand, told the robbers to break into it.
Shortly after 10:15 p.m., Angie Timberlake, Webb's girlfriend, came calling at the Wopshall house. She, too, was directed to join the others in the dining room. After a few minutes, Kennedy directed his accomplices to move Mrs. Wopshall, Webb and Timberlake into the living room. That accomplished, Kennedy bound the three with duct tape. He then moved Mr. Wopshall to a bedroom, binding him with duct tape and telephone cord.
Finding no cache of drugs or substantial amount of cash, Kennedy and his cohorts made off with the safe, several guns, some coins and other items of value. The four victims freed themselves ten or fifteen minutes later and the Sheriff's office was called. 1
On the basis of a tip, a Sheriff's investigator traveled to Georgia and met with one of Kennedy's accomplices who eventually confessed and agreed to testify for the state. The investigator was then led to the purloined guns and the other accomplice who also agreed to testify against Kennedy. An all-points bulletin resulted in the location of Kennedy's Isuzu. He escaped apprehension at that time but was later captured in Tennessee and returned to Florida for trial. Some items stolen from the Wopshall home as well as the yellow gloves he wore during the robbery were found in the Isuzu.
Appellant first urges that the trial court erred in sentencing him to a thirty year term with a three-year mandatory minimum on his conviction for conspiracy to commit robbery while armed with a firearm. We agree and reverse and remand for resentencing on the conspiracy conviction.
Conspiracy is a separate and distinct crime from the offense which is the object of the conspiracy. Here, the object of the conspiracy, i.e. the commission of robbery while armed with a firearm, is a felony of the first degree punishable by life in prison. Conspiracy to commit robbery while armed with a firearm is, under the facts of this case and by virtue of section 777.04(3) and (4)(b), Florida Statutes, a felony of the second degree and is punishable by a term not exceeding 15 years. See section 775.082(3)(c), Florida Statutes. Apparently, the trial court reclassified the conspiracy count to a first degree felony by applying the provisions of section 775.087(1) because of appellant's use of a firearm during commission of the armed robbery that was the object of the earlier conspiracy. Such enhancement was erroneous.
We do not suggest that conspiracy to commit robbery while armed with...
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