Newton v. State, No. 90-3182

CourtCourt of Appeal of Florida (US)
Writing for the CourtDELL
Citation603 So.2d 558
PartiesJerry NEWTON, Appellant, v. STATE of Florida, Appellee. 603 So.2d 558, 17 Fla. L. Week. D1711
Decision Date15 July 1992
Docket NumberNo. 90-3182

Page 558

603 So.2d 558
Jerry NEWTON, Appellant,
v.
STATE of Florida, Appellee.
No. 90-3182.
603 So.2d 558, 17 Fla. L. Week. D1711
District Court of Appeal of Florida,
Fourth District.
July 15, 1992.
Motion to Certify Question Denied Sept. 24, 1992.

Page 559

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Judge.

Jerry Newton appeals his judgment and sentence for three counts of attempted murder of a law enforcement officer, shooting into an occupied vehicle, shooting into an occupied dwelling, possession of a firearm during the commission of a felony and resisting arrest with violence. We affirm his convictions but remand this cause to correct two errors in his sentence.

On the afternoon of September 18, 1989, appellant, while being escorted back to his holding cell by Deputy Al Calabrese, escaped from jail by choking Deputy Calabrese unconscious. On October 4, 1989, police officers Hawkins and Indian, while on patrol, noticed appellant's car stopped at an intersection. Appellant covered his face as their headlights shined upon him. Suspicious, the officers followed appellant for a short distance until he pulled into a driveway. Appellant exited his car and began walking up the driveway. After being told to stop, appellant turned and fired a shot at Officer Indian. Appellant then fired a shot at Officer Hawkins. While fleeing through the residential neighborhood, appellant fired two more shots. As he fled through a field, a third police officer, Officer Justice, ordered appellant to stop. Appellant fired a shot at Officer Justice and ran toward a house where he took cover in a car parked in the driveway. Once Indian and Hawkins arrived at the scene, the three officers approached appellant's position using the police car as a shield. Appellant ignored their instructions to exit the car and fought with the officers as they removed him from the car.

Appellant first contends that the trial court erred by admitting evidence that he escaped from jail by choking Deputy Calabrese unconscious. We disagree for two reasons. First, evidence of appellant's escape from jail is relevant to prove his motive for resisting apprehension by the police. See Johnson v. State, 130 So.2d 599, 600 (Fla.1961); and Mackiewicz v. State, 114 So.2d 684, 689 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960). Second, at trial, appellant objected to the escape evidence on the grounds of relevance and prejudice. On appeal, he argues that his escape from jail shows motive but claims the details of his escape should have been excluded. Since appellant failed to raise this specific objection below, this issue has not been preserved for appeal. Even if appellant had preserved this issue for appeal, we deem the error, if any, in admitting the details of his escape into evidence to be harmless.

Appellant next challenges the legality of his three consecutive life sentences for attempted murder of a law enforcement officer, each of which carries a twenty-five year mandatory minimum term before becoming eligible for parole. Section 784.07(3), Florida Statutes (1989), provides in pertinent part:

Page 560

Notwithstanding the provisions of any other section, any person who is convicted of attempted murder of a law enforcement officer engaged in the lawful performance of his duty ... shall be guilty of a life felony, punishable as provided in s. 775.0825.

Section 775.0825, Florida Statutes (1989), provides:

Any person convicted of attempted murder of a law enforcement officer as provided in s. 784.07(3) shall be required to serve no less than 25 years before becoming eligible for parole. Such sentence shall not be subject to the provisions of s. 921.001.

Finally, section 775.082(3), Florida Statutes (1989), provides in pertinent part:

A person who has been convicted of any other designated felony may be punished as follows:

(a) ... for a life felony committed on or after October 1, 1983, by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.

Appellant argues that because section 775.0825 specifies the penalty for attempted murder of a law enforcement officer, no other penalty statute applies. He reasons that since section 775.0825 only authorizes a sentence of twenty-five years imprisonment before becoming eligible for parole, the trial court had no authority to impose three consecutive life sentences, each carrying twenty-five year terms of imprisonment without parole. Appellant apparently fails to recognize that section 775.0825 prescribes a minimum sentence. It does not affect the imposition of a sentence pursuant to section 775.082(3)(a). We find no error in the trial court's imposition of consecutive life sentences for appellant's three convictions of attempted murder of a law enforcement officer. See Taylor v. State, 573 So.2d 173, 174 (Fla. 5th DCA 1991).

Appellant's third point on appeal has merit. The trial court sentenced appellant as a habitual felony offender on all counts. The habitual offender statute, section 775.084, Florida Statutes (1989), does not apply to life felonies....

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1 practice notes
  • Neal v. State, No. 2D14–1997.
    • United States
    • Court of Appeal of Florida (US)
    • October 10, 2014
    ...1st DCA 2000) ; Gamble v. State, 723 So.2d 905 (Fla. 5th DCA 1999) ; Fraley v. State, 641 So.2d 128 (Fla. 3d DCA 1994) ; Newton v. State, 603 So.2d 558 (Fla. 4th DCA 1992).KHOUZAM, MORRIS, and SLEET, JJ.,...
1 cases
  • Neal v. State, No. 2D14–1997.
    • United States
    • Court of Appeal of Florida (US)
    • October 10, 2014
    ...1st DCA 2000) ; Gamble v. State, 723 So.2d 905 (Fla. 5th DCA 1999) ; Fraley v. State, 641 So.2d 128 (Fla. 3d DCA 1994) ; Newton v. State, 603 So.2d 558 (Fla. 4th DCA 1992).KHOUZAM, MORRIS, and SLEET, JJ.,...

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