Parker v. State
| Decision Date | 18 February 1994 |
| Docket Number | No. 93-644,93-644 |
| Citation | 633 So.2d 72 |
| Court | Florida District Court of Appeals |
| Parties | 19 Fla. L. Weekly D433 Thomas Martin PARKER, Appellant, v. STATE of Florida, Appellee. |
Nancy A. Daniels, Public Defender and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Asst. Atty. Gen., Tallahassee, for appellee.
This is a criminal appeal from the trial court's imposition of consecutive minimum mandatory sentences, imposed pursuant to section 775.084, Florida Statutes. Parker argues that the trial court erred in stacking the minimum mandatory sentences under the habitual violent felony offender portion of the statute, citing to Daniels v. State, 595 So.2d 952 (Fla.1992), and Palmer v. State, 438 So.2d 1 (Fla.1983). 1 For the following reasons, we affirm.
Parker was charged in a single information with attempted first degree murder, sexual battery by the threat of force or violence likely to cause serious personal injury, kidnapping, arson of a dwelling while in the commission of a felony, burglary of a dwelling, and robbery. All of the above offenses occurred on August 14, 1992. The state also filed a notice of intent to seek habitual violent felony offender sanctions. On January 19, 1993, Parker entered a plea of no contest to all six counts. The court accepted the plea and continued the case for sentencing.
At the sentencing hearing, the state introduced evidence establishing that Parker qualified for habitual violent felony offender (HVFO) sentencing. Accordingly, the court adjudicated Parker guilty and sentenced him as an HVFO to concurrent terms of life in prison on the counts charging attempted first degree murder and arson, along with concurrent minimum mandatory terms of 15 years imposed pursuant to subsection 775.084(4)(b). The court next sentenced Parker to life in prison as an HVFO on the counts charging sexual battery, kidnapping, and burglary. These sentences were to run concurrently with each other but consecutively to the life sentences imposed for the counts charging attempted first degree murder and arson. In addition, as to each, the court imposed 15-year minimum mandatory terms. Finally, on the count charging robbery, the court imposed only the HVFO minimum mandatory sentence of 10 years to run concurrently with the life sentences imposed for the sexual battery, kidnapping, and burglary charges, but consecutively to the sentences imposed for attempted murder and arson. As a result of the foregoing sentencing scheme, Parker received minimum mandatory sentences totalling 30 years.
On appeal, Parker contends that the decisions in Palmer and Daniels preclude the court's stacking of the minimum mandatory sentences described above because each of the offenses arose out of a single criminal episode. In opposition, the state argues that this issue is controlled by the supreme court's decision in Murray v. State, 491 So.2d 1120 (Fla.1986), and our decision in Woods v. State, 615 So.2d 197 (Fla. 1st DCA 1993), because the attempted murder and arson offenses combined to form a separate criminal episode from the other offenses. Thus, the issue is whether the offenses for which Parker received the consecutive HVFO minimum mandatory terms were part of a single criminal episode.
Parker urges that because the instant case evolved from a plea, and neither the factual basis for the plea nor the presentence investigation report provides any clues, it is unknown how much time elapsed between the events. Nonetheless, he urges it is clear that the crimes formed a continuing chain of events committed in the same locale without any significant separation in time or place. The record contains only an arrest report from which to glean the details of events on August 14, 1992. That report sets out in sordid detail the extent of the heinous crimes committed against the victim, and since no one has challenged its accuracy either below or on appeal, we rely on it in resolving the issue.
On or about August 14, 1992, Parker arrived at the victim's house under the pretense of performing yard work for the victim. The victim, an 87-year-old woman, recognized Parker as a man named "Tommy" who had done work for her in the past. Parker allegedly informed her that she was mistaken and asked to use her bathroom as a reason to enter her house. Once inside, Parker grabbed the victim, forced her into her bedroom, bound her mouth, wrists, and legs, and sexually battered her repeatedly. When he finished, Parker struck the victim in the face and demanded her money. After the victim informed Parker that she had no money, he ransacked the house and found $55.00 in the kitchen. While this was taking place, the victim was left tied up in the bed. Leaving the victim still bound, Parker exited the house via the back porch, which he then set on fire, leaving the victim to be burned to death. Fortunately, the victim was able to roll out of bed onto the floor and free her hands. She then crawled toward the front door and was ultimately rescued by a friend who had happened to drive up with the victim's groceries.
Parker contends that the foregoing events formed a continuous criminal episode without any significant separation. The state, on the other hand, contends that the fact that all offenses were aimed at one victim is not determinative and that once Parker had completed the offenses of sexual battery, kidnapping, and burglary inside the home and removed himself from the house, he then formed a separate and distinct intent to commit arson and attempted murder. The state points to subsection 775.021(4), Florida Statutes (Supp.1988), requiring the imposition of separate sentences when each offense requires proof of an element the other does not, and argues that the consecutive minimum mandatory terms were correct based on the fact that arson and attempted murder each require proof of an element that the other offenses--burglary, robbery, sexual battery, and kidnapping--do not. Parker counters that the state has confused the concepts of different criminal acts for purposes of a double jeopardy analysis and separate criminal acts for purposes of a Daniels/ Palmer analysis.
We agree with Parker that the supreme court in Daniels and Palmer expressly rejected the state's argument that subsection 775.021(4) controls. 2 However, we agree with the state that the events that occurred outside the victim's home were sufficiently separate in nature, time, and place to permit the imposition of consecutive minimum mandatory terms under subsection 775.084(4)(b).
Palmer addressed the propriety of 13 consecutive minimum mandatory sentences imposed pursuant to subsection 775.087(2), Florida Statutes, based on Palmer's use of a firearm during the commission of multiple armed robberies at a funeral parlor during a wake. The supreme court held that Palmer could not receive consecutive 3-year minimum mandatory sentences because the underlying thirteen armed robberies were committed at the same time and place. While the court permitted separate sentences for each offense, it concluded that for offenses occurring in a single criminal episode, "[n]owhere in the language of section 775.087 [is there] express authority by which a trial court may deny, under subsection 775.087(2), a defendant eligibility for parole for a period greater than three calendar years." 438 So.2d at 3. Significantly, the court recognized that its decision would not prohibit consecutive minimum mandatory sentences for offenses "arising from separate incidents occurring at separate times and places." Id. at 4.
Recently, in Daniels, the supreme court had occasion to answer a certified question on a related issue, which it reworded to ask whether a trial court has "the discretion under sections 775.021(4) and 775.084, Florida Statutes (1988), to impose consecutive fifteen-year minimum mandatory sentences for first-degree felonies committed by an habitual violent felony offender arising from a single criminal episode[.]" 595 So.2d at 953. Answering the question in the negative, the court quashed that portion of the district court's decision under review which had authorized three consecutive 15-year minimum mandatory sentences for armed burglary, sexual battery with a deadly weapon, and armed robbery, all of which were characterized simply as arising out of a single criminal episode. The supreme court remanded with directions that two of the minimum mandatory sentences be made to run concurrently with the third. Id. at 954.
Relying on Palmer and Daniels, Parker urges that his consecutive minimum mandatory sentences likewise should be made to run concurrently with each other. The state argues for affirmance by citing to the supreme...
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