Sanders v. State, No. SC05-2115.

• Court: United States State Supreme Court of Florida
• Writing for the Court: Bell
• Citation: 944 So.2d 203
• Docket Number: No. SC05-2115.
• Decision Date: 26 October 2006
• Parties: Terry P. SANDERS, Petitioner, v. STATE of Florida, Respondent.

944 So.2d 203 Terry P. SANDERS, Petitioner,
v.
STATE of Florida, Respondent. No. SC05-2115. Supreme Court of Florida. October 26, 2006.

Page 204

James Marion Moorman, Public Defender and Kimberly Nolan Hopkins, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals and C. Suzanne Bechard, Assistant Attorney General, Tampa, FL, for Respondent.

BELL, J.

We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:

IN ORDER FOR AN OFFENSE TO BE A LESSER-INCLUDED OFFENSE, MUST IT NECESSARILY RESULT IN A LESSER PENALTY THAN EITHER THE PENALTY FOR THE MAIN OFFENSE OR THE NEXT GREATER OFFENSE ON THE VERDICT FORM?

Sanders v. State, 912 So.2d 1286, 1291 (Fla. 2d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we answer the certified question in the negative.

FACTS

The facts of this case as stated by the Second District Court of Appeal include:

Mr. Sanders shot a bouncer at Club Turbulence in Ybor City on May 16, 2002. Fortunately, the bullet passed through the bouncer's leg without causing a fatal injury. The State charged Mr. Sanders with attempted first-degree murder. Because the State maintained that he discharged a firearm and inflicted great bodily harm, it sought to reclassify the felony and impose an enhanced penalty under section 775.087, Florida Statutes (2002), which is commonly referred to as the 10-20-life statute. In light of his prior record, the State also noticed Mr. Sanders of the possibility that he could receive a sentence as a habitual offender.

At the trial, the court had difficulty determining the appropriate list of lesser included offenses. The attorneys and the judge collectively decided that aggravated battery was a lesser [included] offense of the main offense because the information alleged the discharge of a firearm resulting in great bodily harm, but they ultimately concluded that an instruction on this lesser [included] offense would give the State "two bites at the apple," because it resulted in the same penalty as another lesser [included] offense, attempted second-degree murder while discharging a firearm and inflicting great bodily harm. Accordingly, the trial court did not instruct on any variety of aggravated battery and instead instructed the jury on attempted second-degree murder and attempted voluntary manslaughter as the appropriate

Page 205

lesser [included] offenses. . . . Mr. Sanders did not object to these instructions or to the verdict form.

Id. at 1287-88. The eleven options of the verdict form included four variations of the charged offense of attempted first-degree murder (in descending degree depending on whether the offense was reclassified for use of a firearm), four variations of the lesser included offense of attempted second-degree murder (in descending degree depending on whether the offense was reclassified for use of a firearm), two variations of the lesser included offense of voluntary manslaughter (in descending degree depending on whether the offense was reclassified for use of a firearm), and not guilty. See id. at 1291-92. Ultimately, "[t]he jury found Mr. Sanders guilty of the lesser included offense of attempted second-degree murder with a firearm and specifically decided that Mr. Sanders discharged the firearm and inflicted great bodily harm. This was option E on the verdict form." Id. at 1288. The trial court imposed a sentence of life imprisonment. Id.

On appeal, Sanders alleged that he was entitled to a new trial, arguing that the lesser included offense of which the jury found him guilty was not a true lesser included offense because the penalty imposed was not less than the penalty for the main offense charged. Id. The maximum sentence for the core offense of attempted first-degree murder is thirty years, while the sentence for attempted second-degree murder without any enhancements is fifteen years. However, with the application of the ten-twenty-life statute, the resulting maximum sentence for both attempted first- and second-degree murder while discharging a firearm and inflicting great bodily harm is the same — life.

The Second District affirmed Sanders' conviction and life sentence for the lesser included offense of attempted second-degree murder while discharging a firearm and inflicting great bodily harm. The district court noted:

The offenses listed on Mr. Sanders' verdict form began with life felonies and ended with a third-degree felony. The offenses were not listed in an order that guaranteed that the trial court must impose a lesser penalty, but if one considers all the various sentencing schemes, they are listed in an order that does give the trial court discretion to impose a sentence that is less severe than the preceding option on the verdict form.

Id. at 1289. Relying on this Court's decision in Ray v. State, 403 So.2d 956 (Fla. 1981), the district court held that "an offense is lesser in `penalty' not only when the conviction for the lesser [included] offense is guaranteed to result in a lesser penalty, but also when it will give the trial judge discretion to impose a lesser penalty than the offenses listed higher on the verdict form." Sanders, 912 So.2d at 1290. However, in so holding, the district court expressed uncertainty about how this Court intends trial courts to analyze reclassifications and enhancements when preparing verdict forms. Because of the complexity of the sentencing options caused by reclassification and enhancement statutes, the Second District stated that it was "not inclined to force trial courts to devise verdict forms that always guarantee that...