DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DOMINIQUE WRIGHT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D12-1124
[June 29, 2016]
Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Barry M. Cohen, Judge; L.T. Case
No. 2008CF004966BXX.
Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
MAY, J.
Upon remand from the Supreme Court of Florida, we withdraw our
prior opinion of July 23, 2014, and substitute the following in its place.
The defendant appeals his conviction and sentence for attempted first-
degree murder with a firearm and aggravated battery with a firearm. He
argues the trial court erred in admitting victim one’s testimony from the
suppression hearing and two rap videos. He also argues the court erred
in excluding certain portions of victim one’s deposition testimony. The
State cross-appeals and argues the trial court erred in imposing his
sentences as concurrent, rather than consecutive.
We find no merit in the defendant’s issues on appeal and affirm his
conviction. Based on Williams v. State, 186 So. 3d 989 (Fla. 2016), we also
affirm the defendant’s concurrent sentences based on section
775.087(2)(d), Florida Statutes (2011).
The defendant and co-defendant shot at two people in a car while they
were parked in a driveway. The defendant and co-defendant wounded
victim one in the face and the arm. Victim two was injured by flying glass
from the vehicle caused by the gunshots. The State charged the defendant
and co-defendant with attempted first-degree murder of victim one and
aggravated battery of victim two, both with a firearm.
Prior to trial, the defense moved to suppress victim one’s photo-lineup
identification of the defendant, arguing it was tainted and unreliable.
Victim one testified at the suppression hearing and gave a detailed account
of the shooting. The court denied the motion to suppress.
Victim one was murdered four days after the hearing. The State asked
the court to find victim one unavailable for trial and allow the admission
of his suppression hearing testimony. Defense counsel objected and
argued he had an insufficient opportunity to cross-examine victim one at
the hearing. The trial court ruled the testimony admissible.
The jury found the defendant guilty as charged, specifically finding he
actually possessed and discharged a firearm, causing great bodily harm.
The trial court sentenced the defendant to thirty years’ imprisonment with
a twenty-five-year mandatory minimum for the attempted murder of victim
one. The court sentenced the defendant to twenty years’ imprisonment
with a twenty-year mandatory minimum for the aggravated battery of
victim two. Over the State’s objection, the court ordered the sentences to
run concurrently. Both the State and the defendant filed timely notices of
appeal to this Court.
We find no error in the trial court’s ruling that the defense had sufficient
opportunity to cross-examine the victim at the hearing on the motion to
suppress. See Thompson v. State, 995 So. 2d 532 (Fla. 2d DCA 2008)
(finding murdered witness’s prior testimony admissible where defendant
was present, motivated to probe witness’s recollection and credibility, and
had an opportunity to cross-examine witness at first hearing). We also
find no error in the trial court’s ruling not to allow the use of certain
portions of victim one’s deposition as inconsistent statements. See
§ 90.614(2), Fla. Stat. (2011) (“Extrinsic evidence of a prior inconsistent
statement by a witness is inadmissible unless the witness is first afforded
an opportunity to explain or deny the prior statement . . . .”); see also
Mattox v. United States, 156 U.S. 237 (1895) (finding the court properly
excluded alleged inconsistent statement as the defendant could not lay a
proper foundation).
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And last, we find no error in the trial court’s admission of the rap videos
created by the defendant as they were relevant to the commission of the
crime. See Faust v. State, 95 So. 3d 421 (Fla. 4th DCA 2012) (finding audio
recordings suggesting the defendant was using code words to direct others
to get rid of a weapon were relevant). We therefore affirm the defendant’s
conviction.
The State argues that the trial court’s imposition of concurrent
mandatory minimum sentences for possession and discharge of a firearm
on two separate felonies constitutes an illegal sentence. We must now
disagree. See Williams, 186 So. 3d 989 (Fla. 2016).
We have de novo review. Jackson v. State, 925 So. 2d 1168, 1169 n.1
(Fla. 4th DCA 2006).
Section 775.087(2)(d) states:
It is the intent of the Legislature that offenders who actually
possess, carry, display, use, threaten to use, or attempt to use
firearms or destructive devices be punished to the fullest
extent of the law, and the minimum terms of imprisonment
imposed pursuant to this subsection shall be imposed for
each qualifying felony count for which the person is convicted.
The court shall impose any term of imprisonment
provided for in this subsection consecutively to any other
term of imprisonment imposed for any other felony
offense.
§ 775.087(2)(d), Fla. Stat. (2011) (emphasis added). The State argues that
“shall” means the trial court lacks discretion to impose anything but a
consecutive sentence.
Our supreme court disagreed with that argument and has recently held
that “under the plain language of section 775.087(2)(d), consecutive
mandatory minimum sentences are not required, but are permissible, if
the sentences arise from a single criminal episode.” Williams, 186 So. 3d
at 994. We therefore affirm the defendant’s concurrent sentences.
Affirmed.
WARNER and DAMOORGIAN, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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