VICTOR HERNANDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1990-02-07
No. 88-03018
FRANK, A.C.J., and ALTENBERND, J., concur.
556 So. 2d 767 Florida District Court of Appeal, Second District (1990) Caution
Cited by 14 cases

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Synopsis

Victor Hernandez appealed his sentences on eleven felony counts, challenging the imposition of four consecutive mandatory minimum three-year sentences. The court reversed the consecutive mandatory minimum sentences imposed on counts 8 and 9 as violating the rule against consecutive mandatory minimums for a single criminal episode, but affirmed the sentences in all other respects.


Holding

The court reversed the consecutive mandatory minimum sentences imposed on counts 8 and 9 because they violated the Palmer rule prohibiting consecutive mandatory minimums for crimes occurring as part of a single continuous criminal episode. The sentences on counts 4 and 6 were upheld because they involved separate victims and incidents.


Headnotes

[1] Consecutive mandatory minimum sentences arising from a single criminal episode are prohibited.

[2] Mandatory minimum sentences may be imposed consecutively when offenses result from separate incidents occurring at different times and places.

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Key Quotes

“In Palmer v. State, 438 So.2d 1 (Fla.1983), the supreme court prohibited consecutive mandatory minimum sentences arising from a single criminal episode.”

Establishes the foundational rule that consecutive mandatory minimums are prohibited for crimes occurring in a single criminal episode

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Facts & Procedural History

Hernandez went to Colleen MacKay's home early in the morning. When MacKay told him to leave, Hernandez began hitting her window with a gun, then hit M…

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Opinion of the Court
PARKER, Judge.

PARKER, Judge.

Victor Hernandez appeals from judgment and sentences involving eleven separate felonies. Hernandez challenges the imposition of four consecutive mandatory minimum three-year sentences. We reverse the consecutive minimum mandatory terms imposed in counts 8 and 9. Otherwise, we affirm.

The facts relevant to this appeal reveal that Hernandez went to Colleen MacKay’s home one early morning and when MacKay told Hernandez to leave he commenced hitting the window with a gun. MacKay observed the gun and ran out of the house, at which time she heard an explosion. MacK-ay, with Hernandez chasing after her, ran to a neighbor’s trailer. She knocked on the door and when the neighbor, Katherine Ko-lodziej, appeared, Hernandez pointed the gun at Mrs. Kolodziej. Hernandez then grabbed MacKay and began hitting her about the face and head with the gun. Hernandez dragged MacKay across her carport toward his truck, as she continued to fight him. At one point Hernandez placed the gun to MacKay’s head, but she hit the gun with her arm, and it went off without striking her. During the assault and battery on MacKay, Hernandez would stop and point the gun at some of the onlookers.

Mrs. Kolodziej’s son, Edward Kolodziej, Jr., followed Hernandez around the yard while Hernandez was striking MacKay. At one point in that struggle, Hernandez pointed the gun directly at Mr. Kolodziej and told him to stay away. Thereafter, the police arrived and apprehended Hernandez.

Although there were other offenses for which sentences were legally imposed on Hernandez, the three-year minimum mandatory sentences were imposed as follows:

Count Type of Offense Victim Consecutive or concurrent three-year mandatory sentence 1 Armed burglary Stacey Merritt Not applicable 3 Agg. assault Stacey Merritt Concurrent with count 1 4 Armed Kidnapping Colleen MacKay Consecutive to count 1 5 Armed burglary Colleen MacKay Concurrent with count 4 6 Agg. battery Colleen MacKay Consecutive to count 3 7 Agg. assault Colleen MacKay Concurrent with count 6 8 Agg. assault Katherine Kolodziej Consecutive to count 6 9 Agg. assault Edward Kolodziej Consecutive to count 8 In Palmer v. State, 438 So. 2d 1 (Fla.1983), the supreme court prohibited consecutive mandatory minimum sentences arising from a single criminal episode.

However, in a circumstance where the offenses resulted from separate incidents occurring at different times and places mandatory minimum terms could be imposed consecutively. Id. at 4; LeCroy v. State, 533 So. 2d 750 (Fla.1988). The defense has conceded that the offenses involving Stacey Merritt as the victim arose from a separate and distinct criminal incident than the offenses involving MacKay and the Kolodziejs.

Therefore, there are no Palmer violations, with regard to the mandatory terms imposed in counts 4 and 6 (offenses in which MacKay was the victim) to run consecutively with counts 1 and 3 (offenses in which Merritt was the victim). See LeCroy, 533 So. 2d at 754.

We find, however, the principle enunciated in Palmer to have been violated with regard to the mandatory minimum sentences on counts 8 and 9 imposed consecutively with sentences on counts 6 and 8, respectively, since they form part of a single continuous criminal episode involving MacKay and her neighbors, the Kolodziejs.

The facts presented at trial are contrary to the state’s assertion that the consecutive terms as to counts 8 and 9 involved two completed crimes, one inside MacKay’s home and the other outside the house. The sentences at issue involved the battery of MacKay and the assault on each of the Kolodziejs (counts 6, 8, and 9), which all occurred outside MacKay’s home without any interruption in time or place. We, therefore, reverse the consecutive minimum terms imposed in counts 8 and 9 and remand for the trial court to resentence Hernandez on those counts in accordance with Palmer. In all other respects, the judgment and sentences are affirmed.

Reversed in part and remanded for re-sentencing.

FRANK, A.C.J., and ALTENBERND, J., concur.


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Citator

Cited By

  • Clem Gloster v. State, 568 So. 2d 1318 (Fla. 2d DCA 1990)
    …thstanding the fact different victims were involved, all three offenses occurred without interruption in time or location. Consecutive mandatory minimum terms were therefore unauthorized. Palmer v. State, 438 So. 2d 1 (Fla.1983); Hernandez v. State, 556 So. 2d 767 (Fla. 2d DCA 1990). Affirmed in part, reversed in part, and remanded for resentencing. SCHEB, A.C.J., and DANAHY and HALL, JJ., concur.…
  • McDONALD v. State, 564 So. 2d 523 (Fla. 1st DCA 1990)
    …have followed Palmer and determined that consecutive mandatory minimum sentences could not be imposed pursuant to either of those statutes alone for multiple offenses which occurred in a single criminal episode. For example, see Hernandez v. State, 556 So. 2d 767 (Fla. 2d DCA 1990); Smith v. State, 555 So. 2d 973 (Fla. 1st DCA 1990); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1988); and Murray v. State, 491 So. 2d 1120 (Fla.1986). However, the instant case is distinguishable from Palmer and its progeny in…
  • Young v. State, 631 So. 2d 372 (Fla. 2d DCA 1994)
    …victims, the temporal breaks, and the different locations must all be considered in determining whether the offenses are separate and distinct or occurred during a single episode. See State v. Thomas, 487 So. 2d 1043 (Fla.1986); Hernandez v. State, 556 So. 2d 767 (Fla. 2d DCA 1990). An enhancement statute provides the basis for the consecutive three-year minimum mandatories imposed against the appellant. See § 775.087, Fla.Stat. (1991) (possession of firearm); Daniels. Hence, the minimum mandatories may be…

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