MICHAEL EUGENE KENNEDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Kennedy was convicted of crimes involving a firearm. The appellate court affirmed his convictions but vacated his sentences for aggravated battery with a firearm and attempted robbery with a firearm, finding the trial judge deviated from sentencing guidelines without proper awareness of the applicable range or written justification.
The consolidation, though contrary to procedural rules, did not require reversal because Kennedy had notice and failed to demonstrate prejudice. The closing argument did not impermissibly comment on Kennedy's constitutional right to silence. However, the sentences for aggravated battery and attempted robbery with a firearm must be vacated because the trial judge deviated from guidelines without proper awareness of the applicable range or written justification.
[1] A trial court's sua sponte consolidation of cases for trial, though contrary to rule, does not require reversal absent a showing of prejudice to the defendant.
[2] A trial court does not abuse its discretion in refusing to grant a motion to sever made immediately prior to trial.
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Join FLexlaw to unlock all legal intelligence“Contrary to the provisions of Florida Rule of Criminal Procedure 3.151(b), the trial court on its own motion ordered appellant's case consolidated for trial with that of another defendant.”
Establishes that consolidation violated procedural rules but did not require reversal without demonstrated prejudice
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Join FLexlaw to unlock all legal intelligenceKennedy and codefendant Copeland jumped into a witness's car following an incident that gave rise to the charges. While in the car, a witness testifie…
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GRIMES, Acting Chief Judge.
Contrary to the provisions of Florida Rule of Criminal Procedure 3.151(b), the trial court on its own motion ordered appellant’s case consolidated for trial with that of another defendant. Belote v. State, 344 So. 2d 565 (Fla.1977). However, it appears that appellant had sufficient notice of the consolidation prior to trial, and he has failed to demonstrate the necessary prejudice to require a reversal. See Zeigler v. State, 402 So. 2d 365 (Fla. 1981). Moreover, the court did not abuse its discretion in refusing to grant appellant’s motion to sever, which was made immediately prior to trial. See Dean v. State, 478 So. 2d 38 (Fla.1985).
Appellant also contends that during closing argument, codefendant’s counsel impermissibly commented on appellant’s constitutional right not to testify. At trial, Tolbert, a witness for the state, testified in regard to a conversation between appellant and codefendant, Copeland, which occurred when both of them jumped into Tolbert’s car following the incident which gave rise to the instant charges. Referring to Tolbert’s testimony, Copeland’s attorney argued:
Mr. Tolbert told you that the only thing that Mr. Kennedy said in response to Mr. Copeland’s question “Why did you shoot him?” was he just put his hands up in the air, “I don’t know.” Was that in any way contradicted? It was not. What was Kennedy thinking at that point in time in the ear? We don’t know because very shortly after that he got out of the car and they parted company and we didn’t hear from him anymore.
We do not believe that this portion of the closing argument was reasonably susceptible to interpretation by the jury as a comment on appellant’s failure to testify. An argument that the evidence is uncontradict-ed is not considered to be a comment on the defendant’s silence. Elam v. State, 389 So. 2d 221 (Fla. 5th DCA 1980). The statement that “we didn’t hear from him anymore” logically referred to appellant’s silence while he was in the car and his failure to say anything else after he got out of the car. Hence, the court did not err in denying appellant’s motion for mistrial.
We do find it necessary to vacate appellant’s sentences for aggravated battery with a firearm and attempted robbery with a firearm. The trial judge intended to deviate from the guidelines, but a review of the record indicates that he was unaware of the applicable guideline range. Robinson v. State, 471 So. 2d 671 (Fla. 2d DCA 1985). Additionally, no written statement of the reasons for departure appears in the record. State v. Jackson, 478 So. 2d 1054 (Fla.1985). At resentencing, the court should apply the three-year minimum mandatory sentence to only one of the two crimes which involved the use of a firearm because both of them arose out of one criminal episode. Palmer v. State, 438 So. 2d 1 (Fla.1983); State v. Suarez, 485 So. 2d 1283 (Fla.1986). Since the sentencing guidelines apply to this case, the court should not retain jurisdiction over the sentences under section 947.16(4), Florida Statutes (1985). Senczyszyn v. State, 467 So. 2d 1044 (Fla. 2d DCA 1985).
Appellant’s convictions are affirmed, but the case is remanded for resentencing.
DANAHY and CAMPBELL, JJ., concur.
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Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987)…tat. (1985). Because the sentencing guidelines apply to that sentence, however, the trial court should not have retained jurisdiction for one-third of the armed robbery sentence. Dawson v. State, 491 So. 2d 310 (Fla. 4th DCA 1986); Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986); Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986). Hansbrough’s argument that points should not have been scored for victim injury because victim injury is not an element of armed robbery is a correct statement of current law…
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Bland v. State, 563 So. 2d 794 (Fla. 1st DCA 1990)…ich are not impermissible,3 or to his comments concerning what various witnesses had testified to, which similarly are not improper. See State v. Sheperd, 479 So. 2d 106 (Fla.1985); Avant v. State, 538 So. 2d 99 (Fla. 3d DCA 1989); Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986). Therefore, it cannot be said that counsel’s failure to object to these statements was deficient in performance. Regarding appellant’s failure to raise the defense of voluntary intoxication to the offense of burglary with assault…
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State v. Wagner, 495 So. 2d 283 (Fla. 2d DCA 1986)…Rules of [*284] Criminal Procedure, require the preparation of a scoresheet and the entry of written reasons for any departure. Consequently, we reverse for resentencing in accord with State v. Jackson, 478 So. 2d 1054 (Fla.1985), Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986), and Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984), for preparation of a scoresheet and a written order indicating the court’s clear and convincing reasons for its departure sentence. We further comment that since Wagner h…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Zeigler v. State, 402 So. 2d 365 (Fla. 1981)
- Dean v. State, 478 So. 2d 38 (Fla. 1985)
- State v. Suarez, 485 So. 2d 1283 (Fla. 1986)
- State v. Jones, 485 So. 2d 1283 (Fla. 1986)
- Belote v. State, 344 So. 2d 565 (Fla. 1977)
- Jasper Robinson v. State, 471 So. 2d 671 (Fla. 2d DCA 1985)
- Senczyszyn v. State, 467 So. 2d 1044 (Fla. 2d DCA 1985)
- Elam v. State, 389 So. 2d 221 (Fla. 5th DCA 1980)