Laines v. State

• Decision Date: 14 June 1995
• Docket Number: No. 94-93,94-93
• Citation: Laines v. State, 662 So.2d 1248 (Fla. App. 1995)
• Parties: 20 Fla. L. Weekly D1395 Clifford LAINES, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1248

662 So.2d 1248

20 Fla. L. Weekly D1395

Clifford LAINES, Appellant, v.The STATE of Florida, Appellee.

No. 94-93.

District Court of Appeal of Florida Third District.

June 14, 1995.

Order Denying Rehearing Nov. 15, 1995.

Bennett H. Brummer, Public Defender, and Julie M. Levitt, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Elliot B. Kula, Asst. Atty. Gen., for appellee.

Before HUBBART, BASKIN and GREEN, JJ.

HUBBART, Judge.

This is an appeal by the defendantClifford Laines from judgments of convictions and sentences for second-degree murder and aggravated battery, arising out of a homicidal attack against a single victim, which were entered below upon an adverse jury verdict.The defendant raises two points on appeal, both of which present, in part, reversible error.

I

First, the defendant contends that the trial court committed fundamental error in convicting the defendant of aggravated battery as the conviction was, in effect, barred by the defendant's constitutional privilege against double jeopardy.Because the defendant did not raise this objection at any time in the trial court, we conclude that the defendant has waived the point as to his adjudication of guilt, but not as to his sentence, for aggravated battery; ¹ as to the sentence for this offense, we conclude that the point is well-taken.

As an abstract proposition, we agree with the state that second-degree murder [Sec. 782.04(2),Fla.Stat.] and aggravated battery [Sec. 784.045(1)(a), (2),Fla.Stat.]--the two offenses for which the defendant was sentenced below--each requires proof of an element that the other does not ² and, accordingly, there is no double jeopardy bar under Section 775.021(4)(a), Florida Statutes(1993), as interpreted in State v. Smith, 547 So.2d 613(Fla.1989), to convicting and sentencing a defendant who "in the course of one criminal transaction or episode, commits an act or acts which constitute,"Sec. 775.021(4)(a),Fla.Stat.(1993), a violation of these two statutes.In the instant case, however, the defendant's acts do not constitute a violation of the aggravated battery statute, but only the second-degree murder statute, as it is clear that the defendant killed a single victim with a series of rapid-fire violent acts in a single transaction, all of which contributed to the victim's death.Because no one of these acts can be characterized as an aggravated battery, Section 775.021(4), Florida Statutes(1993), does not authorize a separate sentence for such an offense.

The evidence adduced at trial establishes that the defendant, without any legal justification, killed the victim in this case by committing a series of rapidly successive violent acts within an extremely short time frame: a blow to the victim's head with a pistol, immediately followed by two gunshots to the victim's body, immediately followed by more blows to the victim's body with a pistol; all of these homicidal acts were designed to effect the victim's death which, in fact, followed.Dr. Valerie Rao, an Associate Dade County Medical Examiner, was qualified at trial as an expert pathologist and testified that she conducted an autopsy on the victim's body.She found that the victim had been shot once in the neck and once in the abdomen at short range (eighteen inches or less); that the victim had injuries to both sides of the head, including four lacerations on the right side, all caused by a blunt instrument; and that, in her opinion, the cause of death was "[g]unshot wounds associated with the blunt injury he suffered to his head."(Tr. 201).

We fail to see how an aggravated battery can be parsed out of any of the murderous acts which the defendant committed during this criminal episode--whether those acts be gunshots or head blows, as, in totality, such acts indisputably led to the victim's death and thus constitute a murder.It is true that the head blows were not, in themselves, fatal, but, according to the associate medical examiner, they contributed to the victim's death along with the more lethal gunshot wounds.It is settled law that separate convictions and sentences under two homicide statutes[DUI manslaughter, Sec. 316.193(3)(c)(3),Fla.Stat.(1993), and vehicular homicide, Sec. 782.071,Fla.Stat.(1993) ], for a single criminal homicide are constitutionally forbidden by the double jeopardy clause, because "Florida courts have repeatedly recognized that the legislature did not intend to punish a single [criminal] homicide under two different statutes."Houser v. State, 474 So.2d 1193, 1197(Fla.1985)(emphasis added).This result is still good law notwithstanding the subsequent 1988amendment to Section 775.021(4), Florida Statutes(1993).State v. Chapman, 625 So.2d 838(Fla.1993).Moreover, to accept the state's contrary argument would mean that a separate aggravated battery was committed for every murderous head blow inflicted by the defendant on the deceased--a result which we think the legislature could not possibly have intended.It therefore follows that the defendant may not be punished for a single criminal homicide under two separate statutes, but only under one statute--namely, the second-degree murder statute; the defendant's sentence under the aggravated battery statute therefore cannot stand.Houser; Chapman.

Stated differently, a sentence for aggravated battery in this case is not authorized by Section 775.021(4)(a), Florida Statutes(1993), and is, accordingly, barred by double jeopardy because there was no evidence adduced at trial that the defendant"in the course of one criminal transaction or episode, commit[ted] an act or acts which constitute ... [the] separate criminal offense[ ]" of aggravated battery.Sec. 775.021(4)(a),Fla.Stat.(1993).Indeed, if the defendant had only been charged with second-degree murder, a jury instruction on aggravated battery as a category 2 permissive lesser offense under Fla.R.Crim.P. 3.510(b) could not have been given by the trial court because the trial judge is expressly forbidden from instructing the jury "on any [permissive] lesser included offense as to which there is no evidence."Fla.R.Crim.P. 3.510(b);seeState v. Wimberly, 498 So.2d 929(Fla.1986).It is settled that in a murder prosecution, the trial court may not instruct the jury on non-homicide lesser offenses like aggravated battery--where, as here, it is undisputed that the defendant killed the deceased--because there is no rational basis in the evidence to support a conviction for such an offense.Martin v. State, 342 So.2d 501(Fla.1977).Plainly, a homicidal assault on a victim by a defendant resulting in the victim's death, as here, constitutes a murder--and cannot possibly amount to a non-homicide offense instead of or in addition to the murder as there is no evidence to support it.

II

The defendant further contends that the trial court committed reversible error in imposing a sentencing guidelines departure sentence of life imprisonment for the second-degree murder conviction.We agree.Under the pre-1994 sentencing guidelines applicable to this case, written reasons for a sentencing guidelines departure must be issued contemporaneously when the departure sentence is imposed; where, as here, a trial court imposes a departure sentence and the next day files written reasons for the departure, the departure sentence must be reversed and the cause remanded to the trial court with directions to resentence the defendant within the sentencing guidelines range.³

The judgment of conviction for second-degree murder is affirmed, but the life imprisonment sentence imposed for this conviction is reversed and the cause is remanded to the trial court with directions to impose a sentence within the sentencing guidelines range.The judgment of conviction for aggravated battery is affirmed, but the fifteen-year sentence imposed for this conviction is reversed and the cause is remanded to the trial court with directions to vacate this sentence.

Affirmed in part; reversed and remanded in part.

GREEN, Judge (concurring in part, dissenting in part).

I must respectfully dissent in part.I believe that State v. Smith, 547 So.2d 613(Fla.1989) requires that we affirm Clifford Laines' conviction for both second degree murder and aggravated battery, as well as affirm the separate sentence imposed for the aggravated battery conviction.

The victim, Donny Anderson, was the boyfriend of Rose Smith.The couple had two children.At the time of the crime, Rose was dating Glen Laines, Clifford Laines' brother.Glen Laines and Donny Anderson had a history of "run-ins" with each other.This included the theft of Clifford Laines' Cadillac by a friend of Anderson and Anderson pulling a gun on Glen Laines.On the day of the crime, Anderson came to Rose's house to take their children to dinner.Glen and Clifford Laines went to Rose's house to repair her car.

Rose testified that she heard loud talking and then two quick gunshots.She ran outside and found Clifford standing over Anderson, hitting him on the head and repeating "Cadillac Brougham."Anderson was bleeding from the head and chest.

At trial, Dr. Valerie Rao, the medical examiner in the case, testified that the victim had head trauma and two gunshot wounds.The first bullet entered in the neck, punctured a lung and became embedded in a rib.Stippling around the wound indicated that the shot was fired at close range.The second bullet entered in the abdomen.Dr. Rao went on to testify as follows:

Q: Did you find--going back to gunshot wound B, the gunshot wound to the stomach, is that wound by and itself a fatal wound?

A: ... It is lethal, yes.

* * * * * *

Q: Did you do an examination of the victim's head?

A: Yes.

* * * * * *

Q: What trauma did you discover to his head?

A: He had injuries to both sides of his head.Lacerations meaning when the skin and the underlying tissue are torn that is laceration.It's not cut but it's torn on...