MICHELLE SEHNAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michelle Sehnal was convicted of aggravated assault with a firearm, aggravated assault, and possession of a firearm by a convicted felon. The appellate court affirmed her conviction but reversed her sentence, holding that while mandatory minimum sentences for firearm-related offenses were properly imposed, consecutive sentencing was not compelled by statute.
The court held that golden rule arguments are not per se reversible error, and the prosecutor's arguments here were not improper, highly prejudicial, or inflammatory. However, while mandatory minimum three-year sentences were properly imposed for the firearm convictions, the trial court was not compelled to make those sentences run consecutively.
[1] Golden rule arguments in closing arguments are not per se reversible error.
[2] The determination of whether a golden rule argument warrants a new trial depends on whether the comment was highly prejudicial and inflammatory.
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Establishes the legal standard for evaluating golden rule arguments in closing—they are not automatically reversible but evaluated for prejudicial impact like any other improper argument.
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Join FLexlaw to unlock all legal intelligenceSehnal was convicted of three counts: aggravated assault with a firearm, aggravated assault, and possession of a firearm by a convicted felon. The tri…
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FARMER, J.
We affirm defendant’s conviction, commenting on an issue relating to closing argument, but reverse the sentence.
Defendant argues that the prosecutor made improper golden rule arguments in closing and that golden rule arguments are per se reversible error. In Cleveland Clinic Florida v. Wilson, 685 So. 2d 15 (Fla. 4th DCA 1996), we held that such arguments are not per se error. See Grushoff v. Denny’s Inc., 693 So. 2d 1068 (Fla. 4th DCA 1997) (question for trial court to consider in determining whether golden rule argument, which refers to commonness of human nature and experience, warrants new trial is same as for any other allegedly improper argument; issue is whether comment was highly prejudicial and inflammatory). We have examined the context of the argument in question and do not find it to be improper, highly prejudicial or inflammatory. No error has been shown in this regard.
Addressing the sentence imposed, we begin by noting that defendant was convicted of (I) aggravated assault with a firearm, (II) aggravated assault, and (III) possession of a firearm by a convicted felon. At sentencing, the court lamented, “I, normally, wouldn’t be inclined to impose as harsh a sentence in this case as the State is asking for. But I’m not sure that my hands are not tied by the statute, quite frankly.” Thereupon, the court sentenced defendant to 38.25 months to run consecutively as to counts I and III, and time served on count II.
Section 775.087(2)(a)(l)(f) and (r) provides that convictions for aggravated assault or possession of a firearm by a felon require a minimum term of imprisonment of 3 years if the person possessed a firearm during the commission of the offense and regardless of whether the use of the weapon is an element of the felony.1 Therefore, the trial court properly enhanced Sehnal’s sentences to a 3-year minimum mandatory term for (I) aggravated assault with a firearm and (III) possession of a firearm by a felon. See State v. Parker, 812 So. 2d 495, 497 (Fla. 4th DCA 2002) (finding that “[a] trial court is required to impose a minimum three-year mandatory sentence for use of a firearm where the defendant is convicted of aggravated assault with a firearm.”); Bass v. State, 739 So. 2d 1243, 1246 (Fla. 5th DCA 1999) (stating that the imposition of the three-year minimum mandátory sentence for use of a firearm is required where defendant is convicted of aggravated assault with a firearm). Nevertheless we agree with defendant that the trial court was not compelled to make the sentences for counts I and III run consecutively. See Daniels v. State, 595 So. 2d 952 (Fla.1992) (once sentences for multiple crimes committed during single criminal episode have been enhanced, penalty cannot then be increased again by ordering that sentences run consecutively). We therefore reverse the sentences and remand for re-sentencing.
We affirm on the cross-appeal.
WARNER and TAYLOR, JJ., concur. . See § 775.087(2), Fla. Stat. (2001).
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Cited By
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Redwin Anderson Wilchcombe v. State, 842 So. 2d 198 (Fla. 3d DCA 2003)…(Fla. 5th DCA 2002)(remanding for trial court to exercise its discretion in deciding whether to impose consecutive sentences after original sentence was based upon misapprehension that 10-20-life law required consecutive sentences); Sehnal v. State, 826 So. 2d 498 (Fla. 4th DCA 2002)(remanding to trial court for resentencing after mistaken belief that statute mandated consecutive sentences). Where, as here, two or more enhanced sentences arise out of the same criminal episode, the sentences should run concur…
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Sousa v. State, 868 So. 2d 538 (Fla. 2d DCA 2003)…e under section 775.087, the sentences should run concurrently. See also Green v. State, 845 So. 2d 895 (Fla. 3d DCA 2003); Wilchcombe v. State, 842 So. 2d 198 (Fla. 3d DCA 2003); Roberts v. State, 834 So. 2d 899 (Fla. 3d DCA 2002); Sehnal v. State, 826 So. 2d 498 (Fla. 4th DCA 2002); Williams v. State, 820 So. 2d 1000 (Fla. 3d DCA 2002); Stafford v. State, 818 So. 2d 693 (Fla. 5th DCA 2002); Tunsil v. State, 797 So. 2d 651 (Fla. 3d DCA 2001). Because we agree with Mondesir that this language does not provid…
Authorities Cited
- Berlie Daniels, Jr. v. State, 595 So. 2d 952 (Fla. 1992)
- State v. Parker, 812 So. 2d 495 (Fla. 4th DCA 2002)
- Garvin v. State, 685 So. 2d 15 (Fla. 3d DCA 1996)
- Kenna Grushoff v. Denny's, Inc., 693 So. 2d 1068 (Fla. 4th DCA 1997)
- Cleveland Clinic Fla. v. Wilson, 685 So. 2d 15 (Fla. 4th DCA 1996)
- Leila A. Hyman and Stuart L. Hyman v. Sawgrass Lakes Homeowners Ass'n, Inc., 739 So. 2d 1243 (Fla. 4th DCA 1999)
- Bass v. State, 739 So. 2d 1243 (Fla. 5th DCA 1999)