State v. Sousa

903 So. 2d 923, 2005 WL 1243421
CourtSupreme Court of Florida
DecidedMay 26, 2005
DocketSC03-2128
StatusPublished
Cited by43 cases

This text of 903 So. 2d 923 (State v. Sousa) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sousa, 903 So. 2d 923, 2005 WL 1243421 (Fla. 2005).

Opinion

903 So.2d 923 (2005)

STATE of Florida, Petitioner,
v.
Adam SOUSA, Respondent.

No. SC03-2128.

Supreme Court of Florida.

May 26, 2005.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Robert J. Krauss, Chief-Assistant Attorney General, Tampa Criminal *924 Appeals, John M. Klawikofsky and C. Suzanne Bechard, Assistant Attorneys General, Tampa, FL, for Petitioner.

James Marion Moorman, Public Defender, Tenth Judicial Circuit, Bruno DeZayas, Special Assistant Public Defender and Terry P. Roberts of Harbsmeier, DeZayas, Appel and Harden, LLP, Lakeland, FL, for Respondent.

WELLS, J.

We have for review Sousa v. State, 868 So.2d 538 (Fla. 2d DCA 2003), which expressly and directly conflicts with the decision in State v. Christian, 692 So.2d 889 (Fla.1997). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Adam Sousa was convicted of two counts of attempted murder with a firearm and one count of aggravated assault with a firearm. Based on testimony elicited from eyewitnesses to the event, the incident arose from a shooting spree at a greyhound track and involved three victims, with two of the victims being shot by Sousa in rapid succession during a single criminal episode. The trial court imposed three consecutive sentences: fifty years of imprisonment, with a twenty-five-year mandatory minimum term for each of the two attempted second-degree murder convictions, and five years of imprisonment, with a three-year mandatory minimum term for the aggravated assault conviction. The consecutive sentences totaled 105 years of imprisonment, with a mandatory minimum sentence of fifty-three years pursuant to the enhancement provisions of section 775.087, Florida Statutes (1999), the "10-20-life" statute. The Second District Court of Appeal reversed the sentence, holding that section 775.087(2)(d) did not "provide the legislative authorization necessary to require consecutive sentencing" for the mandatory minimum terms of his sentences. Sousa, 868 So.2d at 540. This Court accepted jurisdiction based upon express and direct conflict with State v. Christian, 692 So.2d 889 (Fla.1997), a decision holding that a trial court did have the authority to impose consecutive mandatory minimum sentences where a gun was fired at and injured multiple victims.

ANALYSIS

Any discussion as to this issue should begin with our decision in Palmer v. State, 438 So.2d 1 (Fla.1983). In that case, the defendant walked into a funeral parlor during a wake, brandished a gun, and ordered the mourners to throw their valuables on the floor. He was convicted of thirteen counts of robbery, one count of aggravated assault, and one count of carrying a concealed firearm. As to the robbery counts, the trial court sentenced Palmer to seventy-five years of imprisonment on each count, with the sentences to run consecutively, for a total of 975 years. Id. at 2. The court also imposed the mandatory minimum sentence of three years on each robbery count, for a total of thirty-nine years, without eligibility for parole. This Court reversed the three-year mandatory minimum sentences on each of the thirteen consecutive sentences, holding that section 775.087, Florida Statutes (1981), did not authorize a trial court to deny a defendant the eligibility for parole for a period greater than three calendar years. Id. at 3. As the Court explained, the executive branch has the exclusive power to grant paroles or conditional releases, and the Legislature can mandate through statute that certain convicted persons serve a certain amount of their sentence without eligibility for parole. Id. However, while courts can impose the mandatory minimum terms already authorized, they are not permitted to exceed such terms by imposing consecutive mandatory minimum terms in such circumstances *925 without explicit authority. We noted that by imposing consecutive mandatory minimum terms, the trial court sentenced Palmer to thirty-nine years without eligibility for parole based on a statute that expressly authorized denial of eligibility for parole for only three years. Palmer, 438 So.2d at 3. We further clarified our holding as follows: "[w]e do not prohibit the imposition of multiple concurrent three-year minimum mandatory sentences upon conviction of separate offenses included under subsection 775.087(2), nor do we prohibit consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places." Id. at 4 (emphasis omitted).

We next addressed this issue in State v. Thomas, 487 So.2d 1043 (Fla.1986), where we declined to extend Palmer's holding to the situation where a defendant committed two separate and distinct offenses involving multiple victims during one criminal episode. In that case, the defendant shot a woman four times in her bedroom. Id. at 1044. While the defendant was reloading his gun, the victim managed to get outside her trailer, and the defendant followed her and shot her again. The victim's son attempted to intervene, but Thomas fired his gun at the son. He then shot the woman twice more. Thomas was convicted of attempted first-degree murder and aggravated assault, and the trial judge imposed consecutive sentences of thirty years of imprisonment for the attempted first-degree murder count and five years for the aggravated assault count. The court further imposed consecutive three-year mandatory minimum sentences for each offense. This Court upheld the sentences and distinguished the holding in Palmer because Thomas involved "two separate and distinct offenses involving two separate and distinct victims." Id.

As later explained by then Judge Pariente in writing for the Fourth District Court of Appeal, two separate shootings of two victims can constitute two separate and distinct offenses committed in a single criminal episode, providing the basis for the imposition of consecutive mandatory minimum terms:

Relying primarily upon our interpretation of [State v.] Thomas [487 So.2d 1043 (Fla.1986)], we hold that in the case of multiple victims, the primary factor triggering the imposition of consecutive mandatory minimums is whether the firearm has been discharged more than once to shoot those victims. An analysis of the nature of the crime, manner of commission, time and place may assist in the inquiry of whether qualitatively separate and distinct criminal acts occurred; but with discharges of the firearm to injure multiple victims, separation of time or place should not be dispositive.
In the case of armed robberies of multiple victims, as in Palmer, the firearm is used simultaneously and in the same manner to rob more than one person. However, discharge of a firearm in the course of an armed robbery changes the nature of the crime and manner of commission. With each successive discharge of the firearm at each additional victim, the firearm is being used separately and distinctly, and in a different manner.

Lifred v. State, 643 So.2d 94, 98 (Fla. 4th DCA 1994), approved by Christian, 692 So.2d at 891.

In Christian, this Court provided additional guidance as to when imposing consecutive mandatory minimum terms is permissible for crimes that occurred during a single criminal episode. In that case, a fight occurred at a bar, and Larry Christian shot the first victim from behind three *926 times, killing the victim. Christian, 692 So.2d at 890.

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Bluebook (online)
903 So. 2d 923, 2005 WL 1243421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sousa-fla-2005.