Murphy v. State
| Decision Date | 21 August 2009 |
| Docket Number | No. 5D08-2603.,5D08-2603. |
| Citation | 16 So.3d 269 |
| Parties | Edwin MURPHY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Orange County, Tim Shea, Judge.
James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
Edwin Murphy, Malone, Pro Se.
Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
In this Anders1 appeal, Edwin Murphy's pro se brief raises one meritorious issue. Following a trial, Murphy was convicted of attempted sexual battery and lewd or lascivious molestation. At his sentencing hearing, Murphy sought dismissal of one of the two convictions on double jeopardy grounds. The trial judge, while conceding that a double jeopardy issue might exist, declined to rule on Murphy's motion. Instead, the court adjudicated Murphy guilty of lewd or lascivious molestation and sentenced him to prison, while taking no action on the attempted sexual battery charge. The State concedes this was error.
A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act. State v. Houghtailing, 704 So.2d 163, 164 (Fla. 5th DCA 1997). Accordingly, we remand this matter to the trial court for the purpose of rendering an order with regard to the attempted sexual battery charge. If it is appropriate to adjudicate Murphy not guilty of that charge, it may do so. If not, it must adjudicate and sentence him for that crime.
REVERSED AND REMANDED.
GRIFFIN, J., concurring and concurring specially.
The trial court appeared to be uncertain about the double jeopardy issue in this case, which was understandable given the uncertain state of the law. Since this case was decided, however, the Florida Supreme Court issued its decision in State v. Meshell, 2 So.3d 132 (Fla.2009), which may inform the trial court's decision on remand.
In this case, count one charged capital sexual battery, alleging that defendant's penis had union with the victim's vagina. Defendant was found guilty of...
To continue reading
Request your trial
-
Rodriguez v. State
...Werhan v. State , 673 So. 2d 550, 553 (Fla. 1st DCA 1996) )), or adjudicate him not guilty of count three, see Murphy v. State , 16 So. 3d 269, 269 (Fla. 5th DCA 2009) ("A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the de......
-
Hernandez v. State
...(concluding that a no contest plea—not the ensuing sentence and judgment of conviction—constituted a conviction). Murphy v. State, 16 So.3d 269 (Fla. 5th DCA 2009), is instructive. In that case, a jury found defendant guilty of two counts. The court sought to avoid a potential double jeopar......
-
Murphy v. State
...adjudicate Murphy not guilty of that charge, it may do so. If not, it must adjudicate and sentence him for that crime.Murphy v. State, 16 So.3d 269 (Fla. 5th DCA 2009) (citations and footnote omitted). Judge Griffin concurred specially with the following opinion:The trial court appeared to ......
-
Covello v. State, 4D12-765
...invasion robbery while masked charge, a court cannot avoid a double jeopardy issue by failing to act on a charge. See Murphy v. State, 16 So. 3d 269 (Fla. 5th DCA 2009) ("A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the d......
-
Pretrial motions and defenses
...the court must either deny the motion and sentence on both counts or dismiss one. The court cannot refuse to act. Murphy v. State, 16 So. 3d 269 (Fla. 5th DCA 2009) Where defendant agrees to plead to both grand theft and dealing in stolen property in return for a low sentence, and he then f......