Sanders v. State, 2D04-2046.
| Decision Date | 04 November 2005 |
| Docket Number | No. 2D04-2046.,2D04-2046. |
| Citation | 912 So.2d 1286 |
| Parties | Terry P. SANDERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and Kimberly Nolen Hopkins, Special Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
Terry P. Sanders appeals his judgment and sentence for attempted second-degree murder while discharging a firearm and inflicting great bodily harm. Mr. Sanders relies on Franklin v. State, 877 So.2d 19 (Fla. 4th DCA 2004), and Ray v. State, 403 So.2d 956 (Fla.1981), to support his argument that it was fundamental error to list attempted second-degree murder while discharging a firearm and inflicting great bodily harm on the verdict form as a lesser offense to attempted first-degree murder while discharging a firearm and inflicting great bodily harm. He maintains that the structure of lesser offenses on the verdict form constituted fundamental error because he received a sentence for this "lesser" offense that was the same as the sentence he could have received for the main offense and that was actually longer than the sentence he would or could have received for one or more of the "greater" offenses on the verdict form. We affirm, but write to demonstrate that the 10-20-life reclassification statute and its enhanced penalties, along with other methods of nonguidelines sentencing, make it difficult, if not impossible, to list offenses on a verdict form in a manner that always assures that each successive option on the verdict form will result in a sentence that is less than the sentence which could be imposed for an earlier option on the verdict form. Because the issues presented in this case could affect many cases involving firearms, we certify a question to the supreme court.
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 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 offense would give the State "two bites at the apple," because it resulted in the same penalty as another lesser 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 lesser offenses. The verdict form contained each of these offenses in the usual order. Where applicable, the verdict form also provided the jury with the option of finding that the offense was committed (1) with a firearm (2) that was discharged (3) inflicting great bodily injury. These combinations resulted in a verdict form with eleven options. To assist the reader of this opinion, a copy of this verdict form is attached as Appendix A along with a description of the degree of each felony and the possible penalty for each option.1 Mr. Sanders did not object to these instructions or to the verdict form.
The 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.
Although attempted second-degree murder with a firearm is a first-degree felony for which the usual maximum penalty is thirty years' imprisonment, the minimum mandatory sentence when the firearm is discharged inflicting great bodily harm is a term no less than twenty-five years and no more than life. Thus, at the sentencing hearing, the trial court had discretion to impose a sentence between twenty-five years' imprisonment and life imprisonment. The trial court determined that Mr. Sanders was eligible for a habitual offender sentence if the court elected to use that sentencing method. Mr. Sanders' attorney argued vigorously for a sentence at the bottom of the minimum mandatory range. However, Mr. Sanders had already committed earlier offenses involving a firearm. Moreover, the evidence at trial indicated that Mr. Sanders had fired more than one shot in an area with many bystanders. Accordingly, the trial court exercised its discretion to impose a sentence of life imprisonment under the 10-20-life statute.
Mr. Sanders argues that he is entitled to a new trial because the lesser-included offense of which he was convicted was not a true "lesser" offense. Mr. Sanders relies on Franklin2 for the proposition that his conviction was not "lesser" because the penalty imposed, life imprisonment, is not less than the penalty for the main offense with which he was charged. Franklin, 877 So.2d at 20. The penalty is actually greater than the penalty he might have received if the jury had selected option D, rather than option E, on the verdict form.
In Franklin, the defendant was apparently charged with the main offense of attempted second-degree murder while discharging a firearm and inflicting great bodily harm. The opinion does not explain the verdict form in detail, but the discussion in Judge Stone's dissent suggests that the verdict form was somewhat similar to the verdict form used in this case. In Franklin, the main offense was a first-degree felony. See §§ 782.04(2), 777.04(4)(c), 775.087(1)(b), Fla. Stat. (2002). Assuming that the verdict form listed the varieties of attempted second-degree murder in an order similar to that used in this case, attempted second-degree murder (without a firearm) was the fourth option and it was a second-degree felony. See §§ 782.04(2), 777.04(4)(c). The trial court in Franklin then instructed the jury on the "lesser" offense of aggravated battery while discharging a firearm and inflicting great bodily harm. This offense is a first-degree felony.3 See §§ 784.05(2), 775.087(1)(b), Fla. Stat. (2002).
In Franklin, the Fourth District focused on the argument that the reclassified form of aggravated battery does not carry a lesser punishment than attempted second-degree murder while discharging a firearm and inflicting great bodily harm. It is worth considering, however, that attempted second-degree murder (without a firearm) was presumably listed on Franklin's verdict form immediately preceding the reclassified aggravated battery offense. Attempted second-degree murder is actually a lesser offense, both in degree and sentence, than aggravated battery once aggravated battery has been reclassified due to the firearm. Thus, Franklin's jury appears to have been given a verdict form that unquestionably listed the lesser offenses in an order that was not descending in penalty.
In Mr. Sanders' case, of course, the trial court did not instruct on aggravated battery as a lesser offense because it concluded that the offense was not a lesser and that such an instruction would give the State "two bites at the apple." 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.4
We conclude that the offenses listed on the verdict form were all appropriate lesser offenses of the main charge and that the order in which they were listed was also appropriate. This is not a situation like Franklin in which a "lesser" offense was actually greater in degree and punishment than the offense that immediately preceded it on the verdict form, and the same both in degree and in punishment as the main offense charged. Especially in the absence of any objection, we conclude that it is permissible for the trial court to place lesser offenses on the verdict form in an order that generally gives the trial court the discretion to impose a lesser penalty, even if that order also gives the trial court the discretion to impose an equal or greater penalty. To that extent, we disagree with the reasoning in Franklin.
The Fourth District in Franklin relied upon Ray v. State, 403 So.2d 956 (Fla.1981). In Ray, the supreme court considered the issue of whether it is fundamental error to instruct a jury on a lesser-included offense when the offense is, in fact, not a lesser offense of the main charge. The issue in Ray involved an offense that was not a lesser offense because its substantive elements did not permit it to be either a necessary or permissive lesser offense. In that context, the court held an erroneous lesser-included charge will not be considered fundamental error if
(1) the improperly charged offense is lesser in degree and penalty than the main offense or (2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.
In Mr. Sanders' case, the substantive elements of attempted second-degree...
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