KEITH H. WITTEMEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Keith Wittemen appealed his convictions for premeditated first-degree murder, first-degree felony murder, and armed robbery. The appellate court reversed and remanded, finding that convictions for both premeditated and felony murder for a single murder violate double jeopardy, and that Wittemen's ineffective assistance of counsel claims regarding suppression of his confession required an evidentiary hearing.
The court held that convictions for both premeditated and felony murder for the same single murder violate double jeopardy. The court also held that Wittemen's motion for suppression was facially sufficient regarding the two grounds: continued interrogation after requesting counsel and obtaining the confession through an implied promise of leniency, requiring an evidentiary hearing.
[1] Convictions for both premeditated and felony murder arising from the same single murder violate double jeopardy.
[2] A confession obtained after a suspect in custody requests counsel and is subsequently interrogated is inadmissible.
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Join FLexlaw to unlock all legal intelligence“We agree with Wittemen that convictions for both premeditated and felony murder for the same single murder violate double jeopardy.”
Establishes the primary ground for reversal based on double jeopardy principles.
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Join FLexlaw to unlock all legal intelligenceWittemen was convicted of premeditated first-degree murder, first-degree felony murder, and armed robbery, all arising from a single murder incident. …
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[*539] PER CURIAM.
Keith Wittemen appeals the trial court’s order granting in part and denying in part his original motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and the order denying his amended motion for postconviction relief. We reverse both.
Wittemen was convicted of premeditated first-degree murder, first-degree felony murder, and armed robbery. All three convictions arose out of the same incident which involved only one murder. We agree with Wittemen that convictions for both premeditated and felony murder for the same single murder violate double jeopardy. See Lamb v. State, 532 So. 2d 1051 (Fla.1988). While the State correctly conceded this below, it appears that the trial court vacated only Wittemeris sentence for felony murder and not the adjudication. Therefore, on this issue we reverse and remand so that the trial court can enter an order vacating Wittemeris conviction for felony murder. Wittemeris other claims relating to double jeopardy are without merit.
Wittemen also alleges that he received ineffective assistance of counsel in that his attorney failed to file a motion to suppress his confession which Wittemen claims was the only piece of evidence linking him to the crimes. Wittemen alleges that he informed his attorney of three separate grounds which would have required that his confession be suppressed. We find only the first two to be meritorious and address them.
First, Wittemen alleges that while he was in custody but prior to confessing, he asked to speak to counsel and that instead of stopping the interview, the police officers continued interrogating him. If true, his subsequent confession made in response to continued questioning would be inadmissible. See Traylor v. State, 596 So. 2d 957 (Fla.1992). Wittemen also alleges that his confession should have been suppressed because the officer interrogating him promised him that no charges would be filed against him if he would tell them what he knew about the murder. A confession obtained as a result of a direct or implied promise of benefit or leniency is involuntary and inadmissible. See Fillinger v. State, 349 So. 2d 714 (Fla. 2d DCA 1977). Wittemeris motion is, therefore, facially sufficient as to these two claims. We reverse and remand for the trial court to either refute Wittemen’s claims with record attachments or to afford him an evidentiary hearing on this issue.
Reversed for vacation of felony murder conviction and remanded for further proceedings consistent with this opinion.
THREADGILL, A.C.J., and PATTERSON and WHATLEY, JJ„ Concur.
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Coughlin v. State, 932 So. 2d 1224 (Fla. 2d DCA 2006)…3.800(a). Coughlin entered an open plea of no contest to attempted first-degree murder, attempted felony murder, robbery with a deadly weapon, and fleeing and eluding. He was convicted and sentenced for all four offenses. Citing Wittemen v. State, 735 So. 2d 538, 539 (Fla. 2d DCA 1999), Coughlin asserts that the trial court illegally sentenced him for the attempted first-degree murder and attempted felony murder convictions because both offenses involved a single act and victim. Coughlin affirmatively alleg…
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Albritton v. State, 769 So. 2d 438 (Fla. 2d DCA 2000)…annot be obtained through direct or implied promises. See Johnson v. State, 696 So. 2d 326, 329 (Fla.1997). “A confession obtained as a result of a direct or implied promise of benefit or leniency is involuntary and inadmissible.” Wittemen v. State, 735 So. 2d 538, 539 (Fla. 2d DCA 1999). “If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded.” Fillinger v. State, 349 So. 2d 714, 716…
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Jeantilus v. State, 853 So. 2d 1099 (Fla. 4th DCA 2003)…ut it was off the record. After, the court ruled the confession admissible. There is some authority that a confession obtained as a result of a direct or implied promise of benefit or leniency is involuntary and inadmissible. See Wittemen v. State, 735 So. 2d 538, 539 (Fla. 2d DCA 1999); Fillinger v. State, 349 So. 2d [*1100] 714, 716 (Fla. 2d DCA 1977) (“If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustwor…
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
- Traylor v. State, 596 So. 2d 957 (Fla. 1992)
- Fillinger v. State, 349 So. 2d 714 (Fla. 2d DCA 1977)
- Lamb v. State, 532 So. 2d 1051 (Fla. 1988)