Lifred v. State

• Citation: 643 So.2d 94
• Decision Date: 05 October 1994
• Docket Number: No. 92-2357,92-2357
• Parties: 19 Fla. L. Weekly D2141 Stephan LIFRED, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 94

643 So.2d 94

19 Fla. L. Weekly D2141

Stephan LIFRED, Appellant, v. STATE of Florida, Appellee.

No. 92-2357.

District Court of Appeal of Florida,

Fourth District.

Oct. 5, 1994.

William K. DeBraal of Law Offices of Norman A. Green, Vero Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.

EN BANC

PARIENTE, Judge.

This is the second sentencing appeal for appellant, Stephan Lifred (defendant), and the second time he has attacked the imposition of consecutive three year mandatory minimum terms pursuant to section 775.087(2), Florida Statutes (Supp.1990) for crimes involving a firearm. Both defendant's original sentence and re-sentence include stacking of a three year mandatory minimum for attempted murder with a firearm of one victim with a three year mandatory minimum for aggravated battery with a firearm of a second victim.

The issue we confront is whether the trial court has discretion to impose consecutive mandatory minimum terms (mandatory minimums) for the crimes of attempted murder with a firearm of one victim and aggravated battery with a firearm of a second victim, occurring during the course of an armed robbery of both victims, where a firearm has been discharged twice resulting in injury to two victims. We hold that the trial court possesses this discretion under section 775.087(2), and properly exercised its discretion under the circumstances of this case because the discharges of the firearm constituted separate and distinct acts against separate and distinct victims.

Defendant, together with codefendants Demetrius Solomon and Levi Rahming, all of whom carried guns, approached several individuals standing outside a record store. Defendant pointed a gun directly at the first victim, Caspah Morris (Morris). As Morris reached into his pocket, apparently to hand over his money, defendant shot Morris in the leg. At this point, persons standing in the vicinity, including the second victim, Everald Henry (Henry), began running from the area. While running, Henry heard another shot and then heard Morris calling for help. In an effort to save Morris, Henry tried to divert the robbers' attention by yelling "task force," a reference to a drug enforcement agency. Henry then fled and was shot as he attempted to enter the record store. Thereafter, Morris was shot in the back four times as he also tried to flee into the store.

Defendant and his codefendants were all convicted of attempted second degree murder with a firearm of Morris (count I), aggravated battery with a firearm of Henry (count II), attempted robbery with a firearm of Morris (count III) and attempted robbery with a firearm of Henry (count IV). Although defendant received separate sentences with three year mandatory minimums for each count, all sentences were concurrent and all mandatory minimums were concurrent except for the consecutive three year mandatory minimum on count I for attempted second degree murder with a firearm of Morris and the three year mandatory minimum on Count II for aggravated battery with a firearm of Henry.

In defendant's first appeal, the propriety of imposing consecutive mandatory minimums was briefed, argued and implicitly rejected. Lifhred v. State, 598 So.2d 335 (Fla. 4th DCA 1992). ¹ Defendant Lifred (also spelled Lifhred) asks us to revisit this issue because one of his codefendants, Levi Rahming, successfully argued on his second sentencing appeal that the imposition of consecutive mandatory minimums, pursuant to Palmer v. State, 438 So.2d 1 (Fla.1983), was improper "because appellant's offenses occurred during a single, continuous criminal episode." Rahming v. State, 616 So.2d 1232 (Fla. 4th DCA 1993). (Rahming II ). ²

Although we implicitly approved of the consecutive mandatory minimums in defendant's first appeal, we are not precluded from revisiting this issue if the imposition of consecutive mandatory minimums constitutes an illegal sentence. See Bedford v. State, 633 So.2d 13 (Fla.1994). In this case, because a subsequent panel of this court in Rahming II found that portion of codefendant Rahming's sentence imposing a consecutive mandatory minimum term to be unlawful, the circumstances here are particularly compelling for a second review. See Smith v. State, 487 So.2d 1088 (Fla. 5th DCA 1986).

We start with the proposition that pursuant to section 775.021(4), Florida Statutes (1989), a trial court has discretion to impose separate sentences, either concurrently or consecutively, for each separate criminal offense arising out of a single criminal transaction or episode. ³ Defendant does not attack his conviction and separate sentence for each of the four crimes arising out of this one criminal transaction or episode.

We next consider the limitation on a trial court's authority to impose consecutive three year mandatory minimums for crimes involving use of a firearm. The supreme court, first discussing this issue in Palmer v. State, 438 So.2d 1 (Fla.1983), declined to read section 775.021(4) in pari materia with section 775.087(2) ⁴ and thus, refused to construe section 775.021(4) as providing unlimited authority to impose consecutive mandatory minimums for multiple crimes within one criminal episode.

While the supreme court upheld the thirteen consecutive sentences for thirteen separate armed robberies resulting in a 975 year term pursuant to section 775.021(4), it rejected the stacking of consecutive mandatory minimums for each of the thirteen robbery counts, totalling thirty-nine years, where the robberies had taken place in the same manner and at one time and place. The majority explained that its holding did not "prohibit consecutive mandatory minimum sentences arising from separate incidents occurring at separate times and places." Id. 438 So.2d at 4.

The supreme court's decision must be analyzed in light of the unique facts in Palmer. The armed robbery occurred in a funeral home when the defendant brandished a pistol and ordered multiple mourners to throw their money and valuables on the floor.

Although section 775.087(2) does not contain any explicit language restricting trial courts from imposing consecutive mandatory minimums for separate criminal offenses involving the use of a firearm, Justice McDonald, writing for a divided court, held the legislature had not intended by this statutory enactment to vest trial courts with authority to deny a defendant eligibility for parole for a period greater than three calendar years for crimes arising from the use of a firearm in one criminal episode. Id. 438 So.2d at 3. The effect of imposing the thirteen consecutive mandatory minimums in Palmer was to sentence the defendant to thirty-nine years without eligibility for parole. The supreme court determined that this result would limit the exclusive power of the executive branch to grant paroles or conditional releases under sentences for crimes, which is impermissible absent express legislative authority. ⁵ Id.

In his dissent, Justice Alderman disagreed that there was any evidence that the legislature intended to limit a trial court's discretion to impose consecutive mandatory minimums for crimes wherein separate sentences were proper pursuant to section 775.087(2):

Had Palmer committed thirteen separate robberies at thirteen separate houses, there would be no question that he could receive thirteen separate, consecutive, three-year mandatory minimum sentences. He should not be entitled to less than this merely because he committed the thirteen separate robberies in the same criminal episode. Certainly a defendant who commits multiple crimes should be punished more severely than one who commits only one crime. The legislature did not intend that crime be "cheaper by the dozen."

Id. 438 So.2d at 4.

The supreme court in Thomas v. State, 487 So.2d 1043, 1044 (Fla.1986), again interpreted section 775.087(2), distinguishing Palmer based on the presence in Thomas of "two separate and distinct criminal offenses involving two separate and distinct victims." We find Thomas, construing the precise statute at issue in this appeal, to control.

In Thomas, the defendant was convicted of attempted first-degree murder of a woman and aggravated assault of her son with consecutive mandatory minimum sentences for each offense imposed because of the defendant's possession of a firearm. The defendant shot the woman four times in the bedroom of her trailer. The woman then fled outside to her yard, where she was followed by the defendant who shot at her again. When the son attempted to aid his mother, the defendant fired at him; thereafter, the defendant shot the woman two more times.

Without quoting any specific statutory language or legislative history, the supreme court determined that under the facts in Thomas, it believed "the legislature intended that the trial court have discretion to impose consecutively or concurrently the mandatory minimum time served." 487 So.2d at 1044. The court analogized the factual circumstances to its decision in State v. Enmund, 476 So.2d 165 (Fla.1985) where it approved of consecutive twenty-five year mandatory minimums for separate and distinct homicides arising from a robbery. While recognizing that Enmund involved section 775.082(1), Florida Statutes, which authorizes twenty-five year mandatory minimums for capital felonies, the supreme court concluded that the intent behind both section 775.082(1) and section 775.087(2) is to vest trial courts with broad discretion to impose mandatory minimums concurrently or consecutively for separate and distinct offenses involving multiple victims. Thomas, 487 So.2d at 1044.

Thomas can be read broadly for the proposition that attempted murder of one victim and aggravated assault or battery of a second victim, or two separate shootings of two separate victims, constitute two separate and distinct offenses justifying the imposition of...