Mitchell v. State, BF-343

• Decision Date: 07 August 1986
• Docket Number: No. BF-343,BF-343
• Citation: 493 So.2d 1058,11 Fla. L. Weekly 1721
• Parties: 11 Fla. L. Weekly 1721, 11 Fla. L. Weekly 2009 Michael MITCHELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1058

493 So.2d 1058

11 Fla. L. Weekly 1721, 11 Fla. L. Weekly 2009

Michael MITCHELL, Appellant, v. STATE of Florida, Appellee.

No. BF-343.

District Court of Appeal of Florida First District.

Aug. 7, 1986.

On Motion for Modification

Denied Sept. 18, 1986.

Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Barbara Ann Butler, Ken Muszynski, Asst. Attys. Gen., Tallahassee, for appellee.

MILLS, Judge.

Mitchell appeals from a conviction for armed robbery presenting three issues for our consideration: (1) whether the trial court erred in denying Mitchell's motion for judgment of acquittal based on lack of evidence to establish use of a firearm; (2) whether the trial court erred in denying Mitchell's motion for a new trial given the robbery victim's recantation of his identification testimony; and, (3) whether the trial court erred in departing from the sentencing guidelines. We affirm in part and reverse in part.

Mitchell was charged with armed robbery and commission of a robbery using a firearm. The offense occurred on 19 October 1983 at Jewelcor Jewelers, Jacksonville. At the jury trial on the charges, Mr. Campbell, the jewelry clerk victimized in this case, testified that on the above date three men entered the store and browsed from display case to display case. Mr. Campbell further testified that he waited on only two of the men while the third man independently viewed items at a distance.

Mr. Campbell went on to state that at one point he was showing two of the men some rings, when one of the men pulled from under his sweater what appeared to be a gun and grabbed him by the collar demanding rings from the case. The two men proceeded to grab the rings and left the store. Mr. Campbell stated that he did not see the third man leave.

A palm print was taken from the crime scene which was found to match that of Mitchell. In addition, Mitchell was identified from a photo spread by Mr. Campbell. Being the only suspect positively identified, Mitchell was the only participant charged.

During the trial, the State also introduced the testimony of Izeal Thornton, who was granted immunity. Thornton stated that he was driving around that evening with his friends, Gino Anderson and Michael Mitchell, when the idea of robbing Jewelcor was first discussed and agreed upon. Thornton testified there was a weapon which he "guessed" was a revolver-type pistol, although he never held it and did not know which one of his friends tucked it under their clothing. Thornton further testified that he remained separate from Anderson and Mitchell while in the store and left when he thought the robbery was about to occur because he did not want to be a participant.

Mitchell moved for a judgment of acquittal after the close of the State's case on the grounds that the State had failed to prove that a firearm was used. This motion was denied.

In his defense, Mitchell testified that the idea of robbing Jewelcor was brought up by Thornton only after they had entered the store, and neither he nor Anderson thought it was a good idea. Mitchell went on to state that it was Thornton who grabbed the store clerk and held a gun on him, although he did personally grab some rings before leaving the store.

The jury returned a verdict of guilty on both charges. Prior to sentencing, however, the store clerk called the Public Defender's office and recanted his identification of Mitchell as the man who pulled the gun. Mr. Campbell remembered that it was Mitchell who went off to another display case before the robbery took place. He testified that he recalled Thornton scooping rings into his pocket while a shorter man held a gun on him.

Accordingly, Mitchell motioned for a new trial. This motion was denied. However, based on the recanted testimony, the trial judge found Mitchell not guilty of possession of a firearm during the commission of a felony and changed the second guilty verdict to armed robbery without possession of a firearm.

Mitchell was then sentenced to a 15-year term of incarceration. This sentence was a departure from the recommended guidelines sentence of 4 1/2 to 5 1/2 years. In this regard, the trial court prepared a statement of reasons for departing which cited the following: (1) Mitchell committed two violent felonies involving the use of a firearm within a two-month period; (2) in excess of $20,000 worth of jewelry was taken during the armed robbery; (3) none of the property taken in the robbery was recovered; (4) Mitchell used the assistance of others to commit the robbery; (5) the trial testimony indicated that Mitchell physically assaulted the victim and pulled the victim towards him while a firearm was pointed at the victim by one of the robbers; (6) the robbery was premeditated and well-planned; and (7) the crime occurred in a large store with a number of innocent customers where the potential injury to bystanders was great.

In moving for a judgment of acquittal, the defendant admits not only the facts stated and the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. A court should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Lynch v. State, 293 So.2d 44 (Fla.1974).

In this court's opinion, under the above standard the trial court properly denied Mitchell's motion for judgment of acquittal. In Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985), the court stated that it was not fatal to the prosecution that a weapon was not introduced into evidence inasmuch as the police never found one. The court went on to hold that the evidence was sufficient to sustain a conviction for attempted robbery with a weapon, where the victim testified that the defendant...