Michelson v. State, 4D02-4810.
| Decision Date | 04 May 2005 |
| Docket Number | No. 4D02-4810.,4D02-4810. |
| Citation | 927 So.2d 890 |
| Parties | Christopher MICHELSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert C. Buschel and Sean Jason Gelb of Buschel Carter Schwartzreich & Yates, Fort Lauderdale, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
Christopher Lee Michelson timely appeals the judgment of conviction of third-degree felony murder and vehicular homicide entered on November 6, 2002. This is the second appeal stemming from a 1998 indictment charging appellant with first-degree felony murder and vehicular homicide. Because the third-degree felony murder conviction and this appeal are the results of our prior decision in Michelson v. State, 805 So.2d 983 (Fla. 4th DCA 2002), we summarize the relevant portions of that decision.
Michelson was initially indicted and tried for the crime of first-degree felony murder. Michelson took part in a scheme that resulted in the prison escape of his friend and accomplice, Jay Junior Sigler. The crime was committed one day after the escape when Michelson, after being spotted, tried to elude police officers, ran a stop sign in the vehicle he was driving, and collided with another vehicle, tragically killing its driver. Felony murder was charged based upon the allegation that Michelson was involved in an escape at the time of the collision. The jury convicted Michelson of the lesser-included offense of second-degree murder and of vehicular homicide. See § 782.04(2), Fla. Stat. (1997) (). In its earlier decision, this court reversed the second-degree murder conviction finding that the evidence did not establish that the defendant acted with ill will, hatred, spite, or evil intent toward the victim. Without that evidence, the State was unable to establish the depraved mind required for the second-degree murder conviction. Pursuant to section 924.34, Florida Statutes (1997), this court remanded the case back to the trial court for entry of a judgment for third-degree felony murder and for re-sentencing.
After rehearing was denied and the supreme court declined to accept jurisdiction, the trial court entered judgment for third-degree felony murder in accordance with this court's mandate. Judgment was entered over appellant's renewed objection that the procedure violated his Sixth Amendment right to a trial by jury. The record reflects that the vehicular homicide conviction was merged for sentencing with the third-degree murder conviction and appellant was sentenced as a habitual felony offender to thirty years in prison, with a fifteen-year, minimum mandatory term. He filed a timely notice of appeal.
Appellant now contends that he was denied his constitutional right to a trial by jury when this court remanded with direction to the trial court to enter a conviction for third-degree murder because third-degree murder requires proof of an essential element, the commission of an underlying felony, which second-degree murder does not. Essentially, appellant argues that the jury did not find the existence of this essential element; therefore, this court's mandate to the trial court to enter a judgment of conviction for third-degree murder is a denial of his Sixth Amendment right to trial by jury. We agree and reverse.
The State initially argues that review is barred because the third-degree felony murder conviction arose from this court's prior decision and is, therefore, the law of the case. See Wallace v. P.L Dodge Mem'l Hosp., 399 So.2d 114 (Fla. 3d DCA 1981). Under the law of the case doctrine, "all points of law which have been previously adjudicated by a majority of this court may be reconsidered only where a subsequent hearing or trial develops material changes in the evidence, or where exceptional circumstances exist whereby reliance upon the previous decision would result in manifest injustice." Henry v. State, 649 So.2d 1361, 1364 (Fla. 1994). However, we are convinced that conviction of a crime under circumstances where a jury has not found that all essential elements of that crime were proven is a manifest injustice, requiring review and consideration.
Having crossed that threshold, we now address the substantive argument raised by appellant. We look to this court's recent opinion in Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004) (Sigler II) as controlling. Sigler and Michelson were accomplices in the underlying escape. Michelson was the driver and Sigler was the passenger in the vehicle that ran the stop sign and ultimately resulted in the tragic and senseless loss of life. A jury convicted Sigler of second-degree murder and, in the original Sigler opinion, this court reversed the second-degree murder conviction and remanded the case back to the trial court with direction to enter a judgment for third-degree felony murder as a lesser included offense of that charged in the indictment. See Sigler v. State, 805 So.2d 32 (Fla. 4th DCA 2001), review denied, 823 So.2d 126 (Fla.2002).
Thereafter, Sigler appealed his conviction for third-degree murder and in Sigler II this court found that third-degree felony murder was not a lesser included offense of second-degree murder, and thus, a defendant convicted of second-degree murder following a jury trial could not have his conviction reduced on appeal to third-degree felony murder. A judgment of conviction for third-degree felony murder requires a determination by the jury that the additional element of an underlying felony has been proven, but the Sigler jury's verdict did not include a determination of guilt beyond a reasonable doubt as to that element. In the instant case, as in Sigler II, the jury never found the existence of an underlying felony, presumably because they found Michelson guilty of second-degree murder, which did not require the existence of an underlying felony as an element of the offense. We do not know and cannot speculate on whether the jury also believed that the State had proven the existence of an underlying felony beyond a reasonable doubt because the verdict returned by the jury did not require that determination.
Appellant argues that section 924.34, Florida Statutes (1997), is unconstitutional because it contains no due process safeguards to preserve the sanctity of appellant's right to jury trial. Section 924.34, Florida Statutes (1997), states:
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