Kirk v. State
| Decision Date | 11 May 2022 |
| Docket Number | 1D20-3598 |
| Citation | 339 So.3d 1043 |
| Parties | Roosevelt KIRK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jessica J. Yeary, Public Defender, and Justin Foster Karpf, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
Ray, J. Roosevelt Kirk appeals an order resentencing him to life in prison under section 921.1401, Florida Statutes, for a first-degree murder he committed as a juvenile. He argues that (1) the findings in the resentencing court's order were not supported by competent, substantial evidence, and (2) the resentencing court abused its discretion by imposing a life sentence with judicial review after twenty-five years. We disagree and affirm.
The Underlying Proceedings
In 1983, Kirk was charged with first-degree murder and armed robbery. At the time, he was fifteen years old and his codefendant, Harry Glenn Gillespie, Jr., was eighteen years old. Kirk made several conflicting statements about how the offenses occurred. When the police first questioned Kirk, he denied any knowledge of the crimes. Then on the day of his arrest, he gave a recorded statement claiming that he went into the Junior Food Store to make a purchase. He argued with the victim, who was the cashier, because she gave him the wrong change. During the argument, she reached below the counter for something silver in her purse and he shot her twice. The day after Kirk's arrest, his story changed again. He told the investigator that he was playing video games at the Junior Food Store when Gillespie came in, robbed the victim, and shot her. Gillespie then gave him ten dollars and warned him not to talk about what he had seen.
Kirk ultimately pleaded guilty to both charges. In return for Kirk giving a sworn statement and testifying against Gillespie, the State promised not to seek the death penalty. Kirk would also be sentenced to life in prison with the possibility of parole after twenty-five years for the murder and a concurrent term of twenty-five years in prison for the robbery.
Consistent with his plea deal, Kirk was deposed. This time, he testified that he bumped into Gillespie at an arcade. Gillespie suggested robbing the Junior Food Store and Kirk agreed. The two then set out on the fifteen- to twenty-minute walk to the store. After walking around the store, they went to the counter. Kirk pointed his gun at the victim and demanded money. Gillespie pulled his gun as well. The victim handed the money to Gillespie, and Gillespie turned to leave. As Gillespie was walking out the door, Kirk shot the victim twice.
In September 1984, Kirk was sentenced to life in prison with the possibility of parole for murder and a concurrent term of twenty-five years in prison for robbery. He did not seek a direct appeal. A few months later, he was sentenced to five years in prison for escaping from custody during his sentencing hearing in this case.
Postconviction Proceedings
Kirk later filed several postconviction motions seeking to be resentenced pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that it is unconstitutional to sentence a juvenile who committed a homicide offense to a mandatory life sentence. In 2017, this Court reversed the denial of one of his postconviction motions based on Atwell v. State , 197 So. 3d 1040, 1041 (Fla. 2016), which held that a life sentence with the possibility of parole is unconstitutional under Miller . See Kirk v. State , 210 So. 3d 769, 769 (Fla. 1st DCA 2017).* On remand, the postconviction court granted resentencing.
In 2018, a resentencing hearing was held. Both sides submitted records, including Kirk's prior statements, a 1997 letter to the trial court arguing that Kirk should not serve more time than the "trigger man," a 2004 letter to the trial court proclaiming Kirk's innocence, and Department of Corrections (DOC) records related to Kirk's program participation, work history, and disciplinary record. The State presented testimony from the prosecutor, a representative from the Florida Commission on Offender Review (FCOR), an FCOR investigator, and four members of the victim's family. Kirk presented the testimony of his cousin-in-law, the founder of a faith-based recovery program, and a licensed psychologist who had interviewed him and reviewed various records from the proceedings and the DOC. Kirk also testified himself.
Kirk testified that the robbery and murder occurred while he and Gillespie were at the Junior Food Store playing video games. Gillespie suggested that they commit the robbery. Kirk claimed he refused at first but then relented to please Gillespie, whom he saw as an older mentor figure. He testified that Gillespie coerced him into shooting the victim. Even though Kirk acknowledged pulling the trigger, he was adamant that Gillespie told him to do so.
At the end of these proceedings, the court resentenced Kirk to life in prison with the possibility of parole and judicial review after twenty-five years. The court's twenty-nine-page resentencing order detailed the procedural history and testimony from the sentencing hearing, then spent nine pages applying the juvenile sentencing factors in section 921.1401(2) to the evidence. The court rejected Kirk's resentencing hearing testimony that Gillespie coerced him into shooting the victim, an assertion made for the first time thirty-five years after the offenses. Instead, the court credited Kirk's 1984 deposition, finding that while the robbery may have been Gillespie's idea, Kirk readily agreed and had a twenty-minute walk to reconsider his decision. The court determined that Kirk took an active role in the robbery, as he was the one who demanded money from the victim. It also concluded that the murder was Kirk's sole responsibility, as he shot the victim twice after she had cooperated and while Gillespie was leaving the store. The court acknowledged as mitigating circumstances Kirk's age, background, minimal criminal history, and potential for rehabilitation. Even so, it found those circumstances were outweighed by Kirk's street-savvy nature, his firsthand experience with the loss of life before the offenses, his unilateral decision to shoot the victim, and his unwillingness to accept full responsibility for his actions.
This timely appeal follows.
Analysis
In deciding whether life in prison is an appropriate sentence for a juvenile offender, the sentencing court must consider various factors pertinent to "the offense and the defendant's youth and attendant circumstances." § 921.1401(2), Fla. Stat. We review "the findings in the trial court's sentencing order to determine whether they are supported by competent substantial evidence [and its] ultimate sentencing decision based on these findings for an abuse of discretion." Jackson v. State , 276 So. 3d 73, 75 (Fla. 1st DCA 2019).
I.
In his first issue, Kirk raises several arguments purportedly challenging whether the resentencing court's order is supported by competent, substantial evidence. See Jackson , 276 So. 3d at 75 ().
But upon close examination, some of these arguments improperly challenge how the resentencing court weighed the evidence. Kirk claims that the court disregarded his age, his intoxication, his below-average IQ, his below-grade-level academic functioning, Gillespie's influence over him, and expert testimony that his upbringing normalized violence. But all that evidence is thoroughly discussed in the resentencing order. The court also explicitly acknowledged Kirk's relationship with Gillespie, expert testimony about Kirk's susceptibility to peer pressure, and Gillespie's role in suggesting the robbery. Those factors simply were not enough to overcome findings that Kirk had learned to live independently in the streets, had no diagnosed mental health issues or deficiencies, and made the unilateral decision to shoot the victim twice while Gillespie was leaving the store. The court's findings were properly supported by competent, substantial evidence, and we will not reweigh that evidence. See Bell v. State , 313 So. 3d 1183, 1189 (Fla. 1st DCA 2021) ( ) (citations omitted); Savage v. State , 120 So. 3d 619, 622 (Fla. 2d DCA 2013) ().
As for his intoxication, although Kirk has given many reasons over the years for shooting the victim—going "blank," fearing the victim might harm him, or being coerced by Gillespie—he has never claimed that he was too intoxicated to understand the consequences of his actions. Indeed, at the resentencing hearing, Kirk did not blame his intoxication for the shooting but claimed that Gillespie directed him to do it. Nor did Kirk's expert attribute the shooting to intoxication. Rather, she acknowledged that at the time of the offenses, Kirk knew that shooting the victim was wrong. Cf. Gonzalez v. State , 50 So. 3d 633, 636 (Fla. 1st DCA 2010) (), aff'd after resentencing , 252 So. 3d 1282 (Fla. 1st DCA 2018).
Other arguments raised in this issue misapprehend the significance of the resentencing court's findings. For instance, Kirk...
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