IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
Case No. 2D98-3990
WILSON ORJALES, a/k/a WILSON O. VELEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
______________________
Opinion filed April 14, 2000.
Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe,
Judge.
Rex Curry for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Erica M. Raffel,
Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Judge.
Wilson Orjales appeals his conviction for aggravated assault with a firearm
and his sentence of 36 months' imprisonment with a three year minimum mandatory
provision. Mr. Orjales raises three issues in this appeal; the first two
assert that the trial court erred in failing to give the "castle doctrine"
jury instruction, see Falco v. State, 407 So. 2d 203 (Fla. 1981), and the
use of non-deadly force jury instruction, see Miller v. State, 613 So. 2d
530 (Fla. 3d DCA 1993). We conclude the trial court did not err and affirm
on these issues. However, we find merit in Mr. Orjales' third contention
that it was error to impose a three year minimum mandatory condition on his
sentence.
Count One of the information charged Mr. Orjales with aggravated assault
and stated that he "did use a deadly weapon, to wit: a firearm, without
intent to kill." Following closing argument, the trial court provided the
jurors with the following instruction:
Wilson Orjales, the defendant in this case, has been accused of the crime
of aggravated assault and improper exhibition of a dangerous weapon or
firearm.
Before you can find the defendant guilty of aggravated assault, the State
must prove the following four elements beyond a reasonable doubt. The first
three elements define assault.
One, Wilson Orjales intentionally and unlawfully threatened either by
word or act to do violence to [the alleged victim]. Two, at the time Wilson
Orjales appeared to have the ability to carry out the threat. Three, the
act of the [sic] Wilson Orjales created in the mind of [the alleged victim]
a well-founded fear that the violence was about to take place. Four, the
assault was made with the a [sic] deadly weapon.
A weapon is a deadly weapon if it is used or threatened to be used in
a way likely to produce death or great bodily harm.
Neither the statement of the aggravated assault charge nor the instruction
on the elements of aggravated assault mentioned the firearm element specified
in the information.
The verdict form for the aggravated assault count gave the jury three
choices: guilty of aggravated assault as charged, guilty of assault, and
not guilty.
Before the trial court may impose the firearm-enhanced minimum mandatory
sentence, the jury must perform its fact finding function and determine
whether the offense involved the use of a firearm. See State v. Overfelt,
457 So. 2d 1385, 1387 (Fla. 1984). In two recent opinions, our supreme court
has again examined whether a minimum mandatory may be imposed for use of
a firearm without a specific finding of fact by the jury. In Stave v. Hargrove,
694 So. 2d 729 (Fla. 1997), the supreme court held that even in circumstances
where the defendant's use of a firearm is uncontested, the jury must still
make a finding of fact that a firearm was used. Hargrove noted two methods
by which this fact may be found. The jury may answer a special interrogatory
whether the defendant is guilty of a crime involving use of a firearm or
render a verdict of guilty "as charged." In Hargrove, the firearm minimum
mandatory was improperly imposed because there was no special verdict form,
interrogatory, or even language in the verdict referencing a firearm. See
id. at 731. However, it again cautioned that the Overfelt requirement of
"a clear jury finding" that a firearm was used remained. Hargrove, 694 So.
2d at 731.
In Tucker v. State, 726 So. 2d 768, 772 (Fla. 1999), the supreme court
held "that the verdict form itself" must contain an express reference to
the use of a firearm. The supreme court pointed out that it previously
held, in State v. Tripp, 642 So. 2d 728, 730 (Fla. 1994), that a verdict
of guilty of the charges set forth in the information was "insufficient
to establish that a weapon was used, even though the information alleged
that [the defendant] used a weapon during the attempted first-degree murder."
In comparison, the verdict form in Tucker, although technically not a special
verdict form, contained language finding the defendant "guilty of attempted
first degree murder with a firearm" and was, therefore, determined by the
supreme court to be legally sufficient.
Applying these decisions to the case before us, we conclude that the
absence of specific language referencing a firearm in the verdict form,
as well as in the jury instructions, is fatally defective. We do not answer
the question whether providing the jurors with a copy of the charging document
during deliberations would satisfy the requirements of Overfelt, Hargrove,
and Tucker because this case's record is silent on the point.
Accordingly, we affirm the conviction and sentence except for the imposition
of the three year minimum mandatory provision which we reverse. We remand
with instructions to the trial court to enter an amended sentence accordingly.
PARKER, A.C.J., and SALCINES, J., Concur.
FEDERAL COURT
In the following case a prosecutor wanted the defense attorney
to abandon an issue and withdraw a motion to
suppress evidence. Instead, the defense motion was granted
and the government dismissed the charges against
Curry's client as well as two other defendants. http://rexcurry.net/law-drugs-suppress.pdf