Semenec v. State, 95-2118

Decision Date03 September 1997
Docket NumberNo. 95-2118,95-2118
Citation698 So.2d 900
Parties22 Fla. L. Weekly D2077 Donald SEMENEC, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Lewis A. Fishman, Plantation, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

DELL, Judge.

Donald Semenec appeals his second degree murder conviction and life sentence for the murder of Bobby Kent. 1 Appellant contends that the trial court failed to properly respond to a jury question during deliberations and that the trial court erred when it departed from sentencing guidelines based on excessive brutality and breach of trust. We affirm.

During deliberations, the jury asked for an explanation of the third element of murder in the first and second degrees. The jury then inquired, "Do these statements need to pertain specifically to Alice Willis and/or Donald Semenec or to the agency?" After conferring with counsel, the court reinstructed the jury on first and second degree murder, and over defense objection, reread the principals instruction.

Appellant argues that by rereading the instruction on principals, the trial court highlighted and improperly advanced the State's case. In Engle v. State, 438 So.2d 803, 810-11 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 753 (1984), the Supreme Court dealt with a similar jury question in a trial involving co-defendants. During deliberations, the jury asked "whether in order to justify a first degree murder conviction the jury had to be convinced that the defendant killed the victim." Id. at 809. The court responded with an instruction on first and second degree murder and the law of principals.

The appellant in Engle argued that the trial court should have instructed the jury on lesser-included offenses. Id. at 809-10. The Supreme Court disagreed and concluded that the reinstruction was proper. The Court stated:

The judge here, evidently because the jury was confused regarding the degrees of murder and how active a role is required in order to be held liable therefor, provided reinstructions on first and second-degree murder and on the law of principals. We are of the opinion that the repeated charges were "complete on the subject involved."

Id. (quoting Hedges v. State, 172 So.2d 824 (Fla.1965)).

In the case at bar, as in Engle, the jury's question related to the elements of the two degrees of murder and how liability attached to the co-defendants. We hold that the rereading of the principals instruction provided the jury with a complete answer to its question.

Appellant next argues that the trial court erred in departing from the sentencing guidelines based on excessive brutality because he only inflicted superficial stab wounds to the victim. The day before the murder, appellant and the other persons charged in this crime collected weapons and made plans deciding how they would commit the murder. They discussed who would inflict the first injury, and appellant said he would stab Kent first. After Kaufman and Puccio questioned whether he could stab Kent, he reassured them that he would.

The next night, appellant, Willis, and Swallers drove with the victim and helped lure him to the scene of the murder under the pretense of a car race. Appellant initiated the chain of events culminating in Kent's death by first stabbing him from behind in the neck. After appellant stabbed Kent, Puccio stabbed him in the stomach. Kent ran from the attackers and pled for his life. Appellant, Puccio, and Kaufman chased and caught him. Puccio and Kaufman then inflicted more wounds on Kent while appellant joined with others co-defendants and circled around him. Expert testimony shows that Kent had five stab wounds on the back of his body, two throat wounds, a seven-inch stab wound through the heart and lung, an abdominal wound, vertebrae fractures, and defensive wounds.

Trial courts may depart from the sentencing guidelines "based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence in accordance with section 921.0016." § 921.001(6), Fla. Stat. (1993). Such aggravating circumstances occur when an offense is committed in an especially heinous, atrocious, or cruel manner, or when the victim suffers extraordinary physical or emotional trauma or permanent injury, or was treated with particular cruelty. §§ 921.0016(3)(b) & (l ), Fla. Stat.(1993). Excessive brutality must be determined on a case by case basis. See Bellamy v. State, 677 So.2d 390 (Fla. 2d DCA 1996)(reversing a departure sentence); Douglas v. State, 652 So.2d 887 (Fla. 4th DCA)(upholding a departure sentence), rev. denied, 661 So.2d 823 (Fla.1995); Harris v. State, 650 So.2d 639 (Fla. 4th DCA), rev. granted, 658 So.2d 990 (Fla.1995)(approving a departure sentence), approved, 674 So.2d 110 (Fla.1996).

Appellant relies on Waychoff v. State, 624 So.2d 392 (Fla. 2d DCA 1993), and argues that a defendant's sentence may not be enhanced based on violence committed by others. In Waychoff, the Second District reversed a departure sentence based on the brutality of the...

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5 cases
  • Van Loan v. State, 2D99-4724.
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 2000
    ...nature of the crime, that are typically analyzed on a case-by-case basis. See § 921.0016(3)(b), Fla. Stat. (1997); Semenec v. State, 698 So.2d 900, 901 (Fla. 4th DCA 1997). Compare Bellamy v. State, 677 So.2d 390 (Fla. 2d DCA 1996) (holding that the preponderance of the evidence did not dem......
  • Miranda v. State, 3D02-156.
    • United States
    • Court of Appeal of Florida (US)
    • December 26, 2002
    ...well aware of the approaching knife, struggled, but was unable to save herself. A case similar to the present one is Semenec v. State, 698 So.2d 900 (Fla. 4th DCA 1997). A departure sentence was upheld there where the defendant and multiple co-defendants "stood with others circling [the vic......
  • Menard v. State, 3D00-2367.
    • United States
    • Court of Appeal of Florida (US)
    • October 16, 2002
    ...Marshall v. State, 600 So.2d 474 (Fla. 3d DCA 1992); Widner v. State, 520 So.2d 676 (Fla. 1st DCA 1988); compare Semenec v. State, 698 So.2d 900 (Fla. 4th DCA 1997). As the Connelly court "The philosophy behind the sentencing guidelines requires individualized consideration. The guidelines ......
  • VALDRICHE v. State, 3D01-1427.
    • United States
    • Court of Appeal of Florida (US)
    • February 13, 2002
    ...departure sentence. § 921.0016(3), Fla. Stat. (1997). See McCallister v. State, 716 So.2d 821 (Fla. 4th DCA 1998); Semenec v. State, 698 So.2d 900 (Fla. 4th DCA 1997); Davis v. State, 700 So.2d 130 (Fla. 4th DCA Affirmed. ...
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