Wanless v. State

• Citation: 271 So.3d 1219
• Decision Date: 06 May 2019
• Docket Number: No. 1D17-448,1D17-448
• Parties: Aaron Beal WANLESS, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

271 So.3d 1219

Aaron Beal WANLESS, Appellant,

v.STATE of Florida, Appellee.

No. 1D17-448

District Court of Appeal of Florida, First District.

May 6, 2019

Rehearing Denied June 4, 2019

Andy Thomas, Public Defender, and Terry P. Roberts, Special Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.

Winsor, J.

Aaron Wanless appeals his convictions and sentences for five counts of aggravated assault. The convictions followed a disturbing episode during which Wanless threatened his father and law enforcement officers. On appeal, Wanless argues the trial court erred in allowing certain testimony about his sanity and, separately, in imposing consecutive 10-20-Life mandatory-minimum sentences. We affirm the convictions but reverse the consecutive 10-20-Life mandatory-minimum sentences.

I.

After fighting with his wife, Wanless got drunk and went to his father's house. Once there, Wanless accused his father of stealing a gun and demanded to know where it was. Wanless then grabbed a knife from the kitchen and threatened to slit his father's throat unless the father produced the gun.

Fearing for his life, Wanless's father left the house and called 911. After three sheriff's deputies responded, Wanless walked outside with a gun and fired a single shot into the air. The sheriff's deputies ordered Wanless to drop the gun, but Wanless refused, yelling that they would have to shoot him. After a tense standoff, Wanless retreated into the house and fled out a back door. He was arrested the next day.

Wanless asserted an insanity defense. A licensed psychologist testified that Wanless's medication was not working and that a manic episode was to blame for his conduct. The State called its own expert, who testified that Wanless was not insane. Wanless objected to the State's expert testimony, arguing the expert was not qualified to opine about sanity because he was not a "psychiatrist, licensed psychologist, or physician," but was instead a mental health counselor with a Ph.D. in Education. The court overruled Wanless's objection, finding the State's expert qualified based on his "education, training, and experience."

The jury convicted Wanless on all five counts of aggravated assault. The first count was for Wanless's assaulting his father with the knife. The next four were for Wanless's assaulting the three deputies and his father with the gun. (The jury found that Wanless discharged a firearm as to the latter four counts.) The court sentenced Wanless to just over eight years for the knife assault; three concurrent twenty-year terms (pursuant to 10-20-Life)¹ for the assaults against the deputies; and a consecutive twenty-year term (also pursuant to 10-20-Life) for the remaining count.

II.

Wanless's first argument is that the trial court should have excluded the State's expert testimony about his sanity. Wanless argues that section 916.115(1)(a), Florida Statutes —which provides that court-appointed experts who evaluate defendants for sanity "each shall be a psychiatrist, licensed psychologist, or physician"—precludes expert testimony from anyone who is not a psychiatrist, licensed psychologist, or physician. But this argument confuses the qualifications of experts the court appoints to evaluate sanity with the qualifications of experts parties present at trial. Although experts appointed pursuant to section 916.115 sometimes testify at trial, see Fla. R. Crim. P. 3.216(i) ("Any experts appointed by the court may be summoned to testify at the trial ...." (emphasis added)), the parties may also introduce "[o]ther evidence regarding the defendant's insanity or mental condition," so long as it is otherwise admissible, see id.

Accordingly, the fact that the State's expert was not a "licensed psychologist, psychiatrist, or physician" did not preclude his testimony at trial. Whether the witness was qualified to testify as an expert was therefore left to the trial court's discretion, see, e.g. , Penalver v. State , 926 So. 2d 1118, 1134 (Fla. 2006) ("The qualification of a person as an expert is within the sound discretion of the trial judge."), and we find no abuse of that discretion.

III.

Wanless's second argument is that his consecutive sentences under 10-20-Life were illegal because his convictions stemmed from a single criminal act. He argues that under the facts of his case—one gunshot, multiple assault victims, no physical injuries—the court lacked authority to impose consecutive sentences.

The issue of whether and when consecutive sentences are permissible under 10-20-Life has long been a subject of confusion. Although the Florida Supreme Court has continued to establish new rules in this area, the facts of this case do not fit neatly into any of them. Nonetheless, we conclude that Florida Supreme Court precedent precluded Wanless's consecutive sentences.

In Williams v. State , the supreme court walked through some of its earlier cases and concluded that the "controlling precedent establishes [these] points of law for purposes of sentencing under the current 10–20–Life statute." 186 So. 3d 989, 993 (Fla. 2016). First, as a general matter, "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." Id. Second, if "multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory." Id. But these points do not help here: Wanless did discharge his firearm (he did not "merely possess[ ]" it), but he did not shoot "at" multiple people; he shot once—and in the air.

Williams therefore does not explicitly answer the question presented here: whether consecutive mandatory-minimum sentences can stand when there are multiple victims but only a single gunshot. Nor is the answer in the 10-20-Life statute's text. As Justice Canady explained, "[t]he distinction ... made based on whether a firearm was fired is totally untethered from anything in the text of the relevant statutes." Walton v. State , 208 So. 3d 60, 69 (Fla. 2016) (Canady, J., dissenting). Indeed, "[u]nder the statutory provisions, the firing of a firearm is relevant only to the length of the mandatory minimum sentence." Id. (Canady, J., dissenting); accord Lifred v. State , 643 So. 2d 94, 96 (Fla. 4th DCA 1994) (Pariente, J.) (noting that "[a]lthough section 775.087(2) does not contain any explicit language restricting trial courts from imposing consecutive mandatory minimums for separate criminal offenses involving the use of a firearm," the Florida Supreme Court has limited authority of trial courts to impose consecutive sentences (citing Palmer v. State , 438 So. 2d 1 (Fla. 1983) )).

With no help from the statutory text and no explicit answer from the Florida Supreme Court, this court has done its best to discern the answer from Williams (and the cases that preceded it). And our cases, interpreting Williams , have held that one gunshot is enough. In Thornes v. State , for example, we noted that " Williams did not directly address whether or not consecutive mandatory minimum sentences were permissible [when] the defendant only shot at one victim but was convicted of multiple firearm offenses arising out of the same criminal episode." 223 So. 3d 411, 411-12 (Fla. 1st DCA 2017). This court went on to hold that—"based on Williams ,"—consecutive sentences are permissible in that circumstance. Id. at 412. Similarly, in Burns v. State , this court applied Williams and held that consecutive mandatory-minimum sentences were allowed after attempted second-degree murder and felon-in-possession convictions when the defendant "discharged a firearm striking a single victim" in a single episode. 212 So. 3d 546, 546 (Fla. 1st DCA 2017) ; see also Plummer v. State , 246 So. 3d 506, 509 (Fla. 1st DCA 2018) ("Under Williams , consecutive mandatory minimum sentences are permissible, but not required if there is a discharge of a firearm."); Bradley v. State , 223 So. 3d 421, 422 (Fla. 1st DCA 2017) (quoting Thornes without attribution and finding consecutive sentences permissible when defendant shot at single victim); Fleming v. State , 219 So. 3d 1038, 1038 (Fla. 2017) (consecutive mandatory-minimum sentences permissible for attempted-murder and felon-in-possession convictions in one criminal episode with single victim; no mention of multiple gunshots); Tate v. State , 194 So. 3d 564, 565 (Fla. 1st DCA 2016) (consecutive mandatory-minimum sentences permissible for second-degree murder and felon-in-possession convictions in one criminal episode; no mention of multiple gunshots); Howard v. State , 100 So. 3d 136 (Fla. 1st DCA 2012) (explaining, pre- Williams , that "[t]he imposition of consecutive minimum mandatory sentences under section 775.087(2) is improper where the offenses occurred during a single criminal episode, unless the defendant discharged the firearm and injured multiple victims or caused multiple injuries to one victim.").

We are of course bound to follow our own decisions unless and until an intervening decision from the Florida Supreme Court, the United States Supreme Court, or this court sitting en banc compels otherwise. See Schlesinger v. Jacob , 240 So. 3d 75, 78 (Fla. 3d DCA 2018) (Luck, J., concurring). We therefore must consider whether the Florida Supreme Court's newest decision in this area— Miller v. State , 265 So. 3d 457 (Fla. 2018) —conflicts with our post- Williams decisions.

The defendant in Miller was convicted of kidnapping with a firearm, aggravated battery, and possession of a firearm by a convicted felon. Id. at 458. His offenses were part of one criminal episode that involved one victim and no gunshot. Id. at 459. Applying Williams , the court concluded that under those facts, "consecutive sentences are...