Palmer v. State, 80-1332

Decision Date14 July 1982
Docket NumberNo. 80-1332,80-1332
Citation416 So.2d 878
PartiesRonald Gene PALMER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Judge.

Ronald Gene Palmer appeals his conviction and sentence for armed robbery, aggravated assault and carrying a concealed firearm.

A sixteen count information charged the appellant with thirteen counts of armed robbery; one count of aggravated assault; one count of carrying a concealed firearm; and one count of possession of a firearm while engaged in a criminal offense. Each count of armed robbery alleged a different named individual from whom money and possessions were taken. Count XIV alleged an aggravated assault upon one Arthur Petersen, also named in Count I as the victim of an armed robbery. The jury found appellant guilty of all the offenses as charged. The court sentenced him to thirteen consecutive terms of seventy-five years' imprisonment with a mandatory minimum of three years on each count of Counts I through XIII (armed robberies) and to five years' imprisonment each on Counts XIV and XV (aggravated assault and carrying a concealed firearm), to be served consecutively to each other and to the initial thirteen counts. No sentence was imposed for possession of a firearm while engaged in a criminal offense (Count XVI). Thus, the trial court sentenced appellant to a total of nine hundred eighty-five years in prison with a mandatory minimum of thirty-nine years and retained jurisdiction over the first three hundred twenty-eight and one-third years of his sentence.

No dispute exists on the essential facts, with the exception of whether or not the appellant displayed a weapon during the perpetration of the assault on Mr. Petersen. On July 28, 1979, during a viewing, the appellant rang the doorbell at the Alemy Funeral Home. The assistant director, Arthur Petersen, answered, and appellant asked to see Allen Roberts. When Petersen told him that no one by that name was present, he pulled a gun and ordered Mr. Petersen to tell everyone to put their valuables on the floor. A few people laughed at Petersen's announcement, whereupon appellant pulled back the hammer on the gun, put the gun to Mr. Petersen's head and said, "I'll kill him if you think I am fooling." The mourners complied. After noticing two latecomers in the outer room of the funeral home he separately ordered them into the main chapel and told them to hand over their bills. As the mourners complied with the appellant's instructions, he threatened to shoot and kill them. After he completed the robbery of the mourners, he ordered Mr. Petersen into the funeral home office to open the cash box.

Appellant raises several points on appeal. He contends: that his conviction and sentence on thirteen counts of armed robbery should be reversed because he only violated one statute and the time, place, circumstances and intent were the same as to all of the victims; that the mandatory minimum sentences constitute cruel and unusual punishment; that the trial court erred in retaining jurisdiction over the first one-third of his sentence; and, that the trial court erred in convicting him on separate counts of robbery and use of a firearm in the commission of a felony.

Appellant cites Hearn v. State, 55 So.2d 559 (Fla.1951), and argues that the robbery of thirteen separate individuals constituted a single transaction because he violated only one statute and the time, place, circumstances and intent were the same as to all of the victims. In Hearn v. State, the defendant stole cows belonging to two different owners from the same pasture at the same time. The Supreme Court found that only one larceny occurred. The defendant was convicted in the morning of the larceny of one cow belonging to Adkinson, and placed on trial in the afternoon for the larceny of cows and calves belonging to Ganey. He filed a plea of former jeopardy. The Supreme Court concluded

[T]he facts and circumstances of this case are identical with the other case for the larceny of which the defendants were convicted, all occurring at the same time and arising out of the same transaction, under the same circumstances and with the same intent, thus constituting this act a single larceny. (Emphasis added).

Hearn v. State, supra.

Two years later, the Supreme Court distinguished Hearn and held that the defendant committed two larcenies when he stole cattle belonging to two separate owners from two different pastures. Hall v. State, 66 So.2d 863 (Fla.1953). The element of intent distinguished Hearn from Hall. In Hall, as in the instant case, the defendant knew that the property belonged to multiple owners. The record clearly demonstrates appellant's intent to commit a robbery as to each victim.

The Second District Court of Appeal has distinguished "single transaction" cases from "single episode" cases:

[A]ll so-called "single transaction" cases are in turn to be distinguished from those that may well be termed "single episode" (original emphasis) cases in which multiple, separate and severable offenses are committed; e.g., a single robbery involving several victims, a multiple homicide situation, a burglary with intent to commit larceny and the ensuing larceny, or a case in which one is found simultaneously in possession of two separate and distinct kinds of contraband. In this latter class of cases both separate judgments and separate sentences, concurrent or consecutive are proper. (Emphasis supplied). State v. Peavey, 326 So.2d 461, 463-464 (Fla.2d DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976).

This court also pointed out in Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981), affirmed, 415 So.2d 1265 (Fla.1982), that the legislature has abrogated the single transaction rule. Florida Statute 775.021(4) (1977). The record does not support appellant's argument that his conviction on Counts I through XIII constituted a violation of one statute. Rather the record amply demonstrates that he separately violated one statute thirteen times during a single episode. Therefore we must affirm appellant's conviction and sentence for each of the thirteen robberies.

Appellant contends that imposing three year mandatory minimum sentences on each of the thirteen consecutive sentences for armed robbery, a total of thirty-nine years, constitutes cruel and unusual punishment. He compares the thirty-nine year mandatory term for thirteen counts of armed robbery to the mandatory twenty-five year term for conviction of first degree murder. Appellant's comparison is invalid. A defendant convicted of thirteen counts of first degree murder would be subject to a total mandatory...

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8 cases
  • Bunkley v. State
    • United States
    • Florida Supreme Court
    • May 27, 2004
    ...three year sentences pursuant to section 775.087(2), for each separate crime committed during a single criminal episode. Palmer v. State, 416 So.2d 878, 881 (Fla. 1st[4th] DCA 1982). This Court, however, found that the statute did not authorize denying eligibility for parole consideration f......
  • Rose v. State
    • United States
    • Florida District Court of Appeals
    • April 9, 1987
    ...two or more related offenses, the charge of every other related offense must be dismissed on the defendant's motion.2 Palmer v. State, 416 So.2d 878 (Fla. 4th DCA 1982), aff'd. in part; rev'd. in part, 438 So.2d 1 (Fla.1983).3 Holmes v. State, 453 So.2d 533 (Fla. 5th DCA 1984); Brown v. Sta......
  • Aikens v. State
    • United States
    • Florida District Court of Appeals
    • December 20, 1982
    ...3d DCA 1982); State v. De La Rosa, 414 So.2d 26 (Fla. 3d DCA 1982); Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982); Palmer v. State, 416 So.2d 878 (Fla. 4th DCA 1982); D'Alessandro v. Shearer, 360 So.2d 774 The trial court's denial of Aikens' Rule 3.850 motion is AFFIRMED. MILLS and ERV......
  • Barnhill v. State
    • United States
    • Florida District Court of Appeals
    • June 13, 1985
    ...So.2d 1184 (Fla.1981) (differentiates between factual events on the basis of different times and different objects); Palmer v. State, 416 So.2d 878 (Fla. 4th DCA 1982) (evidence demonstrated the defendant "violated one statute thirteen times during a single episode"), disapproved on other g......
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