Pericola v. State, BL-84

• Decision Date: 05 December 1986
• Docket Number: No. BL-84,BL-84
• Citation: 499 So.2d 864,11 Fla. L. Weekly 2555
• Parties: 11 Fla. L. Weekly 2555 Frank Edward PERICOLA, III, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 864

499 So.2d 864

11 Fla. L. Weekly 2555

Frank Edward PERICOLA, III, Appellant, v.STATE of Florida, Appellee.

No. BL-84.

District Court of Appeal of Florida First District.

Dec. 5, 1986.

Rehearing Denied Jan. 23, 1987.

Henry R. Barksdale of Henry R. Barksdale, P.A., Pensacola, for appellant.

Jim Smith, Atty. Gen., Kurt L. Barch, Asst. Atty. Gen., for appellee.

MILLS, Judge.

Pericola appeals from a conviction of attempted first degree murder, possession of a short-barrelled rifle, possession of a firearm while under indictment for a felony and trespass while armed.We affirm.

In December 1984, police officer Henderson effected Pericola's arrest for possession of a concealed weapon and burglary of a structure while armed; Pericola was charged with these crimes by information dated 6 December 1984.On the night of 13 December, Henderson was shot while in the parking lot of his apartment building.The light cast by the parking lot lights and by the discharging firearm enabled Henderson to positively identify Pericola as his assailant.

Pericola fled the scene in a beige automobile, but his customary vehicle, a blue Jeep, was discovered parked at the local airport soon after the shooting and placed under intense police surveillance.During the course of the surveillance, which lasted until Pericola's arrest in the early morning hours of 14 December, and without a warrant, a police officer seeking to disable the motor discovered a gun concealed in the engine compartment.Pericola's fingerprints were later found on the gun and tests revealed that the bullets extracted from the victim had been fired from it.Pericola's motion to suppress the gun was denied, the court finding that the officer's conduct in finding the gun was not a search barred by the 4th Amendment.The decision was further based on a warrant obtained after the discovery of the gun, the court finding that its issuance was supported by probable cause and that, pursuant to it, the gun would have been "inevitably discovered" by lawful means.

Prior to the commencement of trial, Pericola filed a motion to be declared incompetent to stand trial pursuant to Rule 3.210, Fla.R.Crim.P.The trial court found "reasonable ground to believe" that Pericola was not competent to stand trial and ordered his examination by two experts as required by Rule 3.210(b).Following these examinations, the court declared Periocola incompetent to stand trial and required his involuntary hospitalization at Florida State Hospital, where he was examined, observed by the staff and given a battery of psychological tests.

As a result of this hospitalization, a report was filed with the court opining that Pericola was competent to stand trial which was then rescheduled.One month prior to the second scheduled trial, Pericola filed another motion to determine his competence to stand trial, based on the previously-considered medical reports and his attorney's belief that he could not assist in his defense.A hearing was held the next day after which the court ruled that no doubt as to Pericola's competence had been raised, and denied the motion.

At the commencement of trial the defense moved for a continuance to determine competency to stand trial.In response to the court's inquiry, defense counsel conceded that Pericola's mental state had not hindered the preparation of his defense.Pericola himself testified that he knew the charges against him, knew the function of the jury and the result of a guilty verdict and had understood the jury selection process and was satisfied with the results.The court found him competent to stand trial which then proceeded.

Evidence at trial showed that Pericola was positively identified by the victim as his assailant.It was also shown that the gun discovered in Pericola's car bore his fingerprints and had fired the bullets extracted from the victim.The charges brought by the 6 December 1984 information were tried along with the charges resulting from the later shooting; namely, attempted first degree murder, possession of a short-barrelled rifle and possession of a firearm while under indictment.Although a motion for judgment of acquittal was granted as to the 6 December concealed weapon charge, Pericola was found guilty of trespass while armed, and of all counts as charged in the second information.A subsequent motion for judgment of acquittal directed to the charge of possession of a firearm while under indictment was denied.

The initial sentencing proceeding was held on 19 December 1985, at which evidence was received as to Pericola's competence to be sentenced, pursuant to Rule 3.720(a)(1), Fla.R.Crim.P.That rule provides, in pertinent part, that a defendant may allege and show as legal cause why sentence should not be pronounced that he is "insane."The court established as the standard for determining that "insanity" Pericola's "understanding of the nature and effect of the possible sentences that could be imposed and why imposed."The medical testimony showed that, while Pericola's mental condition had greatly deteriorated as a result of the stress of his conviction, he knew he had been convicted by a jury in a court of law and that there was a resulting penalty which could be a prison term.The court determined that Pericola had created cause to believe he was insane, but counsel stipulated that no further expert examinations need occur.

The judge took the matter under advisement, and reconvened the sentencing proceeding on 23 December.Pericola coherently testified that he knew he was being sentenced for a shooting which had occurred on 14 December 1984, that he knew the victim and knew he would go to jail.Based on this testimony and on the medical testimony received at the earlier sentencing hearing, the court found Pericola "oriented to time, place and person with the capacity to understand, and the actual understanding of, the nature and effect of the penalty and why it was being imposed."The court also found that he knew and understood that he had been found guilty by a jury and could be sentenced to life in prison and proceeded to sentence him.

A person is incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or if he has no rational, as well as factual, understanding of the proceedings against him.Section 916.12(1), Florida Statutes(1985);Rule 3.211(a), Fla.R.Crim.P. Pericola does not...