Whitehead v. State

• Decision Date: 15 February 1984
• Docket Number: No. 82-2039,82-2039
• Citation: 446 So.2d 194
• Parties: Eugene WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 194

446 So.2d 194

Eugene WHITEHEAD, Appellant, v. STATE of Florida, Appellee.

No. 82-2039.

District Court of Appeal of Florida Fourth District.

Feb. 15, 1984.

Rehearing Denied March 15, 1984.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.

HERSEY, Judge.

The primary issue raised by this appeal involves an application of the mandatory minimum sentence statute, Section 775.087(2), Florida Statutes (1981) and whether its inappropriate imposition constitutes fundamental error.

On June 3, 1982, two black males entered a Winn-Dixie supermarket and then left. A few minutes later one of the men, identified as the codefendant, David Landrau, confronted the store manager, David Strachan, at gunpoint in his office and forced him to hand over money. As Landrau was leaving the store he passed Patrick Giordano, grabbed two gold chains from his neck Responding to a BOLO, Officer George Jerabek attempted to stop a vehicle coming from the direction of the Winn-Dixie which matched the radioed description of the robbers. Whitehead was the driver. The car pulled over to the side of the road and the passenger fired a shot in Jerabek's direction. The car then accelerated. Jerabek pursued the vehicle and returned fire. After the codefendant fired two more shots, the car stopped. The two men fled on foot and were ultimately found and arrested.

and shot him in the chin. Marjorie Baggett, a cigarette company sales representative, was servicing cigarette machines during the robbery. She was held at gunpoint by a man she later identified as the appellant, Eugene Whitehead.

Whitehead was informed against on six counts. He was tried and acquitted on two counts and convicted and sentenced on the other four.

On appeal he postulates three grounds for reversal. The first has to do with the alleged inattentiveness of one of the jurors. This was addressed by the trial court during the trial. The trial court was obviously satisfied that no untoward mischief resulted from the complained of conduct. We find no error in that regard. Undoubtedly

[a] trial court has the duty to insure that a defendant receives a fair and impartial trial and that jurors are attentive to the evidence presented. The conduct of jurors is the responsibility of the court and the court is allowed discretion in dealing with any problems that arise.

Orosz v. State, 389 So.2d 1199, 1200 (Fla. 1st DCA 1980), citing Walker v. State, 330 So.2d 110 (Fla. 3d DCA), cert. denied, 341 So.2d 1087 (Fla.1976).

Second, appellant questions the propriety of retaining jurisdiction over a portion of the sentence without stating the grounds for retention with sufficient particularity. We find that any error which may have occurred was not preserved for appellate review. Not being of fundamental proportions it was thereby waived. McFadden v. State, 423 So.2d 456 (Fla. 4th DCA 1982); Hernandez v. State, 425 So.2d 213 (Fla. 4th DCA 1983).

The final error of which appellant complains, and to which we add an observation of our own, concerns the appropriateness here of mandatory minimum sentences.

Appellant was convicted of "attempted murder in the first degree, with a firearm, as charged in the information" [Count II]. The incident to which Count II refers is the get-away during which shots were fired at Officer George Jerabek. We will treat two aspects of the legal problem presented by the record on this issue.

It is established that vicarious possession of a firearm is insufficient to impose the mandatory three year minimum jail sentence under Section 775.087(2), Florida Statutes (1981). Brown v. State, 358 So.2d 92 (Fla. 4th DCA), cert. denied, 364 So.2d 881 (Fla.1978); Earnest v. State, 351 So.2d 957 (Fla.1977). A finding of actual possession may be based upon circumstantial evidence. Bradley v. State, 413 So.2d 1248 (Fla. 1st DCA 1982). Neither the victim, Jerabek, nor any other witness observed appellant in the possession of a firearm after leaving the scene of the robbery. Although appellant had a gun at the store, the firearm found in the vehicle had only his codefendant's fingerprints on it. Imposition of the mandatory minimum sentence was therefore inappropriate. The state points out, and we think correctly so, that appellant failed to object or to make an appropriate motion to give the trial court an opportunity to correct the error. Thus unless this sentencing error is fundamental it will be deemed to have been waived.

The district courts have not been uniform in their treatment of this particular sentencing error. The third district in Pinder v. State, 396 So.2d 272 (Fla. 3d DCA 1981) refused to reach the merits of an assertion of error of this type "because the issue was not properly preserved for review by any objection or motion which asserted this particularized contention below." In essence the court declined to view the error as fundamental. In a later case involving the enhancement statute, Section 775.087, Florida Statutes (1981), the third district determined The second and fifth districts on the other hand have determined such an error to be fundamental. In Lawson v. State, 400 So.2d 1053, 1055 (Fla. 2d DCA 1981) the court, in holding the error to be fundamental, states that "[O]ne of the more commonly recognized fundamental errors is the imposition of an illegal sentence." The fifth district in Reynolds v. State, 429 So.2d 1331, 1333 (Fla. 5th DCA 1983) found such an error to be fundamental and held:

a similar error to be fundamental in the context of that statute. Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982).

Where, as here, the sentencing error can cause or require a defendant to be incarcerated or restrained for a greater length of time than provided by law in the absence of the sentencing error, that sentencing error is fundamental and endures and petitioner is entitled to relief in any and every legal manner possible, viz: on direct appeal although not first presented to the trial court, by post-conviction relief under Rule 3.850, or by extraordinary remedy. As to such a fundamental sentencing error he is entitled to relief under an alternative remedy notwithstanding that he could have, but did not, raise the error on appeal. An erroneous application of the three year mandatory minimum sentence would constitute a fundamental sentencing error.

Despite dicta in an earlier case suggesting that we leaned toward a contrary view (Brown v. State, 358 So.2d 92 (Fla. 4th DCA 1978)) the better rule would appear to be that improper imposition of a mandatory minimum sentence, because of its inherent potential of causing or requiring "a defendant to be incarcerated or restrained for a greater length of time than provided by law in the...