Jeremiah T. Pinkard v. State , 185 So. 3d 1289 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JEREMIAH T. PINKARD,
Appellant,
v. Case No. 5D14-2532
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed February 26, 2016
Appeal from the Circuit
Court for Orange County,
Frederick J. Lauten, Judge.
Dawne Ducarpe, of Nexus Trial Group,
Orlando, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona
Beach, for Appellee.
EDWARDS, J.
This is a case of road rage in which the occupants of a Dodge Magnum
confronted the driver and passenger of a Suzuki SUV. The Suzuki was occupied by
McFerrel Jones, the driver, and Rashaud Burns, the passenger. After the Suzuki
allegedly cut off the Dodge, Appellant, the driver of the Dodge, pulled up next to the
Suzuki at a stop light and said that he would end both Jones' and Burns' lives that night
if they did not stop driving so fast. Burns explained that they were rushing to the
hospital because his baby was about to be born. As the traffic light turned green and
the cars began to separate, Appellant fired multiple shots in the direction of the Suzuki
while one of the Dodge's backseat passengers fired one shot at the Suzuki. One of the
bullets struck Jones in the back of the head, killing him. Following a jury trial, Appellant
was found guilty of manslaughter, aggravated assault with a firearm, and shooting into
an occupied vehicle. The jury made the specific finding that Appellant did actually carry,
possess, and discharge a firearm during the commission of the crime. We affirm his
convictions without further discussion. We will briefly discuss an issue raised by
Appellant regarding the consecutive sentence imposed as to Count 5.
"The legality of a sentence is a question of law and is subject to de novo review."
Flowers v. State, 899 So. 2d 1257, 1259 (Fla. 4th DCA 2005) (citing Wardlaw v. State,
832 So. 2d 258, 259 (Fla. 2d DCA 2002)). Concerning the indictment's first count,
Appellant was convicted of the lesser included offense of manslaughter, a second-
degree felony. The offense was reclassified to a first-degree felony due to Appellant's
use of a firearm, and Appellant was sentenced to thirty years imprisonment. See §
775.087, Fla. Stat. (2011). Appellant's sentence for Count 2, aggravated assault, a
third-degree felony, was enhanced due to Appellant's discharge of a firearm, requiring a
"minimum term of imprisonment of 20 years," to run concurrently with the sentence for
Count 1. See § 775.087(2)(a)(2), Fla. Stat. (2011).1 His fifteen-year prison sentence for
1
See Jackson v. State, 659 So. 2d 1060, 1062-63 (Fla. 1995), in which the
Florida Supreme Court used the word "enhancement" when describing the increased
sentence imposed on the defendant as a result of the minimum mandatory sentence
required by section 775.087, Florida Statutes (1993), for the defendant's possession of
a firearm.
2
Count 5, shooting into an occupied vehicle was not enhanced and was ordered to run
consecutively to the other sentences.
On appeal, Appellant relied on Hale v. State, 630 So. 2d 521 (Fla. 1993), in
support of his argument that his sentence for Count 5 should not run consecutively to
his sentences for Counts 1 and 2. Hale prohibits the imposition of enhanced
consecutive sentences for crimes committed during a single criminal episode. 630 So.
2d at 524. However, in Cotto v. State, 139 So. 3d 283 (Fla. 2014), the Florida Supreme
Court held that it was "unwilling to extend Hale to apply to unenhanced sentences." 139
So. 3d at 289.2 Because the sentence for Count 5 was not enhanced, the trial court did
not commit reversible error in ordering the sentence for Count 5 to run consecutively to
the sentences imposed for Counts 1 and 2.
AFFIRMED.
PALMER and TORPY, JJ., concur.
2
We find that our earlier case of Fuller v. State, 867 So. 2d 469, 470 (Fla. 5th
DCA 2004), has been implicitly overruled by Cotto v. State, 139 So. 3d 283 (Fla. 2014).
3