SAMUEL GERALDO VELEZ, APPELLANT/CROSS-APPELLEE,
v.
THE STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Samuel Velez appeals his convictions for manslaughter of a police officer, armed burglary, grand theft, and attempted manslaughter. The Florida Third District Court of Appeal affirms both the convictions and the departure sentences, upholding the trial court's innovative use of dual juries and finding the escalating pattern of criminal conduct justified the sentencing departure.
The court affirmed the convictions and sentences. The dual jury system did not violate Velez's right to a fair trial where the trial court carefully ensured each jury only heard admissible evidence and no prejudice occurred. The departure sentence was valid based on Velez's escalating pattern of criminal conduct demonstrated by his three juvenile adjudications progressing from nonviolent auto theft to possession of a firebomb to resisting arrest with violence.
[1] The use of dual juries in a joint trial is permissible to avoid Bruton problems and other general issues of prejudice that arise from joint trials, provided that the tria…
[2] A defendant waives the right to final closing argument by failing to request it during arguments relating to the presentation of evidence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“no court, state or federal, has held the procedure to be inherently prejudicial, nor has any court to date found specific prejudice warranting reversal in the matter before it.”
Establishes that the dual jury system has never been found inherently prejudicial by any court, supporting affirmance of the conviction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceVelez and two codefendants were charged with murdering a police officer and burglarizing an occupied motel room. To avoid Bruton problems, the trial c…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Escalating Pattern Of Criminal Conduct cases and more on FLexlaw
PER CURIAM.
Samuel Velez appeals from judgments of conviction and sentences for manslaughter of a police officer, armed burglary of an occupied dwelling, grand theft, and attempted manslaughter of a police officer. We affirm.
Velez and two codefendants, Griffin and Tarallo,' were charged with various offenses stemming from the murder of a police officer and the burglary of an occupied motel room. Tarallo entered into a plea agreement. Before trial, Velez moved to sever his trial from Griffin’s to avoid problems arising under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (defendant’s right of cross-examination guaranteed by Sixth Amendment violated by admission, at joint trial before single jury, of out-of-court statement of nontestifying codefendant that implicated defendant). The trial court granted the motion to sever but, instead of conducting two entirely separate trials, impaneled two juries. When Griffin’s statement was introduced, Velez’s jury was re moved from the courtroom. The jury was also excused when Tarallo testified during the State’s case against Griffin, Velez’s codefendant.
The jury found Velez guilty of manslaughter of a police officer, burglary, grand theft, and attempted manslaughter of a police officer. The recommended guidelines sentence was 12-27 years. The trial court sentenced Velez to 50 years imprisonment with a minimum mandatory of ten years on the manslaughter conviction; life imprisonment for armed burglary; five years for grand theft; and fifteen years for attempted manslaughter. As reasons for the departure sentence, the trial court noted that the manslaughter victims were police officers; that the armed burglary was of an occupied dwelling; and that the defendant had displayed an escalating pattern of criminal activity.
The Dual Juries
On appeal, Velez argues that the trial court’s use of a dual jury system violated his right to a fair trial. He does not argue that impaneling the two juries was inherently prejudicial, nor does he complain of the admission of any inadmissible evidence. Rather, he claims that the trial court excused the Velez jury during testimony that would have been helpful to his defense. During the State’s case against Griffin, Tarallo testified as to matters that Velez claimed went to Velez’s defense of withdrawal from the crime. Velez wanted his jury to remain in the courtroom during that testimony. Because his jury was removed, Velez had to call Tarallo during his case and argues now that he was prejudiced by doing so as he lost his right to final closing argument by calling a witness. We find that argument without merit. The right to final closing argument must be requested in order to be preserved. Bivins v. State, 313 So. 2d 471 (Fla. 4th DCA 1975), cert. denied, 328 So. 2d 840 (Fla.1976). During arguments relating to the presentation of Tarallo’s testimony, Velez never requested final closing argument and cannot now complain. Moreover, error, if any occurred, was harmless as Velez called a witness before Tarallo and did not lose the right to final closing argument simply because he called Tarallo.
Although the use of dual juries is innovative and requires great diligence by the trial court, it is a useful exercise in judicial economy. The multiple jury procedure 1 was designed to avoid Bruton problems and other general problems of prejudice that arise from joint trials. See generally David C. Minneman, Annotation, Propriety of Use of Multiple Juries at Joint Trial of Multiple Defendants in State Criminal Prosecution, 41 A.L.R.4th 1189 (1985).
The use of two juries, while cited as being somewhat confusing, is essentially two separate trials in which portions of the same evidence is admissible. Consequently most courts seat both juries for opening statements and for any evidence or testimony admissible in both trials. Then each jury is excused for evidence that is not admissible in its corresponding trial. In that manner any overlapping testimony need only be presented once, resulting in substantial savings of time, without prejudicing any party involved.
Gaynes, Two Juries/One Trial — Panacea of Judicial Economy or Personification of Murphy’s Law, 5 Am.J.Trial Advoc. 285 (1981). Although various courts have disapproved the practice,2 “no court, state or federal, has held the procedure to be inherently prejudicial, nor has any court to date found specific prejudice warranting reversal in the matter before it.” People v. Harris, 47 Cal.3d 1047, 255 Cal.Rptr. 352, 767 P. 2d 619, 635 (1989). The two Florida courts that have addressed the issue affirmed convictions that followed the use of dual juries. Roberts v. State, 573 So. 2d 964 (Fla. 2d DCA 1991); Feeney v. State, 359 So. 2d 569 (Fla. 1st DCA 1978). In Feeney, the first district remarked that
[t]he law is, and must be, dynamic and not static. Procedural law is no exception. Experience comes about as a result of experiment. A trial judge has very broad discretion in the procedural conduct of trials. In the absence of demonstrated prejudice, we are loathe to disapprove the novel procedure [dual juries] employed sub judice.
359 So. 2d at 570. Although the use of dual juries is rife with the potential for error or prejudice, none occurred in the conduct of this trial. The trial court took great pains to ensure that each defendant’s jury only heard evidence that was admissible against that defendant. The State, the defense, and the trial court engaged in extensive discussions regarding the implementation of safeguards surrounding the use of the dual jury system. Accordingly, we affirm the judgments of conviction.
The Departure Sentence
The trial court gave three reasons for departing from the sentencing guidelines. We find one of those reasons valid and, therefore, affirm the sentence. § 921.001(5), Fla.Stat. (1989). Velez’s conduct revealed an escalating pattern of criminal activity. He had three juvenile adjudications of delinquency that occurred within three years of this offense. The progression of offenses — from nonviolent auto theft, to possession of a firebomb, to resisting arrest with violence — clearly show an escalating pattern of criminal conduct. Although all of the offenses that comprised the pattern were juvenile offenses, they can form the basis for the trial court’s departure from the sentencing guidelines. See Simmons v. State, 570 So. 2d 1383 (Fla. 5th DCA 1990) (prior record, consisting solely of juvenile offenses, sufficient to justify departure sentence.where offenses showed persistent, escalating pattern of criminal conduct or behavior); Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989) (juvenile offenses formed basis for finding of escalating pattern of criminal conduct)3.
Accordingly, we affirm both the judgments of conviction and the sentences.
Affirmed.4
. The Supreme Court of Maine recently affirmed a conviction that followed a dual trial, four-jury proceeding. State v. Bowman, 588 A. 2d 728 (Me.1991); see also People v. Knight, 139 Ill.App.3d 188, 93 Ill.Dec. 521, 486 N.E. 2d 1356 (1985) (triple-jury proceeding; no prejudice found), cert. denied, 480 U.S. 905, 107 S.Ct. 1346, 94 L.Ed.2d 518 (1987).
. See, e.g., State v. Lambright, 138 Ariz. 63, 673 P. 2d 1 (1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984); Scarborough v. State, 50 Md.App. 276, 437 A. 2d 672 (1981).
. It is not the juvenile offenses themselves that justified departure, but the pattern of increasing violence that they formed. Cf. Blue v. State, 541 So. 2d 736 (Fla. 1st DCA 1989) (three juvenile convictions insufficient to support departure).
. Because of our disposition of the main appeal, we do not reach the issues raised by the State’s cross-appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Thompson v. State, 615 So. 2d 737 (Fla. 1st DCA 1993)…s tried separately outside the presence of the jury considering the case of the other defendant, with the exception of certain evidence which will be more fully discussed infra. . Feeney v. State, 359 So. 2d 569 (Fla. 1st DCA 1978); Velez v. State, 596 So. 2d 1197 (Fla. 3d DCA 1992). . Thompson claims the trial court denied his motion to discharge without either defendant or counsel being present. On the contrary, counsel was there and explicitly waived the appearance of his client. . After Staton’s attorne…
-
Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008)…onally present when the trial court entered an order resentenc-ing him on count one. Under the circumstances of this case, the defendant is incorrect. At his sentencing in 1991,* the court imposed a fifty-year sentence on count one. Velez v. State, 596 So. 2d 1197, 1199 (Fla. 3d DCA 1992). In his rule 3.800(a) [*708] motion, the defendant argued, and the trial court agreed, that the fifty-year sentence exceeded the thirty-year legal maximum on count one. The court entered an order reducing the sentence on cou…
-
Taylor v. State, 659 So. 2d 1202 (Fla. 3d DCA 1995)…offense were sufficient to support the trial judge’s determination that Taylor’s record, by a preponderance of the evidence, exhibited a pattern of increasingly serious criminal activity. See § 921.001(4)(a)6, (6), Fla.Stat. (1993); Velez v. State, 596 So. 2d 1197, 1200 n. 3 (Fla. 3d DCA 1992) (“It is not the juvenile offenses themselves that justified departure, but the pattern of increasing violence that they formed.”); Williams, 581 So. 2d at 146; Morgan, 550 So. 2d at 153. Furthermore, the sentencing judg…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Bruton v. United States, 391 U.S. 123 (U.S. 1968)
- Lewis v. Univ. of Pittsburgh, 469 U.S. 892 (U.S. 1984)
- Navios Corp. v. United States, 469 U.S. 892 (U.S. 1984)
- Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989)
- Simmons v. State, 570 So. 2d 1383 (Fla. 5th DCA 1990)
- Feeney v. State, 359 So. 2d 569 (Fla. 1st DCA 1978)
- Blue v. State, 541 So. 2d 736 (Fla. 1st DCA 1989)
- Pennell v. City of San Jose, 480 U.S. 905 (U.S. 1987)
- Etsi Pipeline Project v. Missouri, 480 U.S. 905 (U.S. 1987)
- Roberts v. State, 573 So. 2d 964 (Fla. 2d DCA 1991)