Stewart v. State, 75337
| Court | United States State Supreme Court of Florida |
| Writing for the Court | PER CURIAM; SHAW; BARKETT, J., concurs in part and dissents in part with an opinion, in which KOGAN; BARKETT; KOGAN |
| Citation | 588 So.2d 972 |
| Parties | Kenneth Allen STEWART, Appellant, v. STATE of Florida, Appellee. 588 So.2d 972, 16 Fla. L. Week. S617 |
| Docket Number | No. 75337,75337 |
| Decision Date | 12 September 1991 |
Page 972
v.
STATE of Florida, Appellee.
Rehearing Denied Dec. 2, 1991.
James Marion Moorman, Public Defender and Douglas S. Connor, Asst. Public Defender,
Page 973
Tenth Judicial Circuit, Bartow, for appellant.Robert A. Butterworth, Atty. Gen. and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.
PER CURIAM.
Following remand for written findings supporting the death penalty and written reasons for departure, Stewart appeals his sentences of death for first-degree murder and life for armed robbery. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We affirm the death penalty and reverse the life sentence.
The facts of this case are set out fully in Stewart v. State, 549 So.2d 171 (Fla.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3294, 111 L.Ed.2d 802 (1990). Stewart shot two persons who gave him a ride hitchhiking. He stole their car, took items therefrom, and set it on fire. One victim died. Stewart was convicted of first-degree murder, attempted second-degree murder with a firearm, robbery with a firearm, and arson. The trial judge, following the jury's ten-to-two recommendation, sentenced him to death on the murder charge, imposed two consecutive fifteen-year sentences for the attempted second-degree murder and arson convictions, and, departing from the sentencing guidelines, imposed a life sentence for the armed robbery.
On direct appeal, we affirmed the convictions and the two fifteen-year sentences. We temporarily remanded on the death sentence so the trial court could provide written findings supporting its sentence. 1 Because the trial court failed to give written reasons for departure on the armed robbery conviction, we vacated the life sentence and remanded for resentencing on that charge. On remand, the court made written findings supporting the death sentence, finding two aggravating circumstances 2 and four mitigating. 3 The trial court also reimposed the life sentence, giving three written reasons for departure. 4
Following remand, Stewart raises a number of issues concerning the death sentence that can be disposed of briefly. He first claims that it was double-dipping for the trial court to use robbery as an aggravator when the same robbery served as the basis for the felony murder conviction. We have rejected this argument many times. See, e.g., Menendez v. State, 419 So.2d 312 (Fla.1982). His argument that life must be imposed in every case where the trial court fails...
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