Williams v. State

Decision Date11 April 1985
Docket NumberNo. AW-152,AW-152
Citation466 So.2d 1246,10 Fla. L. Weekly 936
Parties10 Fla. L. Weekly 936 John F. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

PER CURIAM.

Having considered appellee's motion for rehearing and reconsidered other issues involved in this case, we withdraw the decision and opinion filed February 12, 1985, substituting the following decision and opinion therefor. The motion for rehearing is otherwise denied.

Williams appeals from a final judgment following a jury trial at which he was adjudicated guilty of first degree felony murder and armed robbery (use of a deadly weapon, a knife). We reverse.

Williams was arrested at his home in Walton County in the early hours of Sunday, August 22, 1982, on a warrant issued from Okaloosa County for the murder of Ted Schery in Ft. Walton Beach. Williams was implicated by Park, who had apparently hidden Schery's body and fled in Schery's car to northern Georgia where he was apprehended. After his arrest, Williams was placed in Walton County Sheriff McMillan's automobile. Okaloosa County Undersheriff Jerry Alford was also in the car. Sheriff McMillan testified that he gave Williams Miranda warnings from memory, then asked where Schery's body was located. Williams responded that he didn't know, then stated he did not want to talk and requested an attorney. Undersheriff Alford was present during the above colloquy and heard the defendant make the above statements.

Okaloosa County Sheriff's investigator Keeler, unaware of the request for an attorney, approached Williams as he sat unaccompanied in Sheriff McMillan's car and told him it would be easier if he told where Schery's body was located. Williams responded that he didn't know. Williams was then transported to the Walton County jail, accompanied by Keeler. Keeler testified that en route he "had some conversation with Mr. Williams," but that "[i]t was nothing official." Williams related his dislike for Walton County officials, made a statement that he was not "queer," and requested to be driven by Freeport High School where he stated that he had had his first sexual experience with a girl. Keeler left Williams at the Walton County jail. Keeler saw Williams the next morning, Monday, August 23, 1982, at the Okaloosa County jail where Williams had been transferred. Keeler asked Williams what Williams called Park. Williams replied, "Mouse." Keeler asked Williams if he wanted to tell his side of the story. Williams responded, "yes." Keeler advised Williams of his rights. Initially, Williams stated he wanted an attorney. Keeler asked Williams if he meant during his statement. Williams responded, "no." Williams executed a written waiver and freely told everything to Keeler. Williams was booked following his statement, then had his first appearance which was about thirty hours after his arrest.

Undersheriff Alford testified that he never informed any of his deputies of the defendant's request for an attorney and Deputy Keeler stated that he was not aware of that request when he had his subsequent encounters with the defendant.

At trial, Williams' motions to preclude questioning of potential jurors as to their opinions regarding the death penalty and to preclude challenging for cause those jurors who would not vote for the death penalty were denied.

Park testified that he had befriended Williams, who knew Schery. Park and Williams went to Schery's apartment to get money. While Williams and Schery were engaged in a homosexual act, Park strangled Schery. Williams then cut Schery's throat.

Williams was adjudicated guilty of first degree felony murder and armed robbery. He agreed to testify against Park in exchange for the state's not seeking the death penalty. The trial court sentenced Williams on the conviction for first degree felony murder to a life sentence. No sentence was imposed for the armed robbery conviction, the trial court specifically opining that the armed robbery was an underlying felony to the first degree felony murder and that sentence on the armed robbery was therefore prohibited.

Williams contends the failure to give him a first appearance within twenty-four hours of his arrest, and the failure to provide an attorney after his request for counsel render his statements to Keeler inadmissible. Williams argues that the improper delay prompted his confession.

First appearance is required within twenty-four hours of arrest. Rule 3.130(a), Florida Rules Criminal Procedure. The booking officer is required to advise a defendant of his right to counsel, and, if counsel is requested, to put the defendant in touch with the public defender. Rule 3.111(c)(1) and (2), Florida Rules Criminal Procedure. Lack of a first appearance within twenty-four hours, however, does not affect a confession obtained after a defendant is advised of his rights and the confession is voluntary, with no indication that the delay induced the confession. Headrick v. State, 366 So.2d 1190 (Fla. 1st DCA 1979). There is no evidence that the delay in a first appearance for Williams induced the confession.

It appears quite clear, however, that Keeler's subsequent interrogation of the defendant after he had requested an attorney was contrary to the holding of the Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Williams' statements to Keeler were, therefore, inadmissible. Under Edwards, once an accused expresses a desire to exercise his right to counsel, he cannot be interrogated further by police until afforded counsel, unless he "initiates further communication, exchanges, or conversations with the police." Id., 451 U.S. at 484, 485, 101 S.Ct. at 1884, 1885, 68 L.Ed.2d at 386. Further, it matters not that Deputy Keeler was not informed by his undersheriff that the defendant had stated that he did not wish to answer further questions and requested a lawyer. See Silling v. State, 414 So.2d 1182 (Fla. 1st DCA 1982).

Williams requests that we recede from Nettles v. State, 409 So.2d 85 (Fla. 1st DCA 1982), to reverse the trial court's allowing "death qualification" of the jurors. We see no reason to recede from Nettles, noting the recent opinion of Copeland v. State, 457 So.2d 1012 (Fla.1984), in which the same argument was rejected.

Finally, Williams argues that the armed robbery for which he was convicted was the underlying felony of the felony murder charge and that his conviction on the armed robbery was therefore prohibited. We disagree and hold that in a case such as this, the law permits both conviction and sentence on the robbery charge.

We recognize that where the separately charged robbery is a "simple" (unarmed) robbery, a defendant who is both convicted and sentenced on the robbery would be entitled to relief from at least the sentence. 1 See State v. Hegstrom, 401 So.2d 1343 (Fla.1981); Copeland v. State, 457 So.2d 1012 (Fla.1984); and Hawkins v. State, 436 So.2d 44 (Fla.1983). But the robbery crime charged in Count 2 is armed robbery (Williams used a deadly weapon, a knife), a crime which is not the same as the underlying felony (simple robbery) required to prove the felony murder charge in Count 1. Under Section 782.04(1)(a)2d, first degree felony murder requires only simple robbery as the underlying felony. Thus, a most significant element of the crime charged in the robbery count is not an element of the murder count.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court considered whether a single act...

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  • First appearance: do much to do, so little time.
    • United States
    • Florida Bar Journal Vol. 74 No. 9, October 2000
    • 1 Octubre 2000
    ...of the rule must be shown to have induced the confession." Keen v. State, 504 So. 2d 396, 400 (Fla. 1987). See also Williams v. State, 466 So. 2d 1246 (Fla. 1st DCA 1985); Johnson v. State, 660 So. 2d 648 (Fla. If it's all so simple, then why the need for this article? The answer is that fi......

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