5D09-2440 Newton McLeod v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-2440

Case Date: 12/27/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2010 NEWTON W. MCLEOD, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed December 30, 2010 Appeal from the Circuit Court for Orange County, Jose Rodriguez, Judge. James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D09-2440

PALMER, J. Newton W. McLeod (defendant) appeals his judgments and sentences on three counts of attempted second degree murder (with a firearm); and one count each of shooting at, within, or into an occupied vehicle, and possession of more than 20 grams of cannabis. We affirm the defendant's convictions, but reverse the sentence that was imposed on one count of attempted second degree murder.

The State filed a seven count information charging the defendant with three counts of attempted first degree murder (with a firearm)1, two counts of aggravated battery (with a firearm)2, one count of shooting at, within, or into an occupied vehicle3, and one count of possession of more than 20 grams of cannabis.4 The jury found the defendant guilty of the lesser included offense of attempted second degree murder with a firearm on count one, and found that the defendant actually possessed and discharged a firearm resulting in great bodily harm to the victim. The jury also found the defendant guilty of the lesser included offense of attempted second degree murder with a firearm on counts two and three, and guilty as charged on the remaining counts. The trial court adjudicated the defendant guilty on counts one, two, three, six, and seven; however, the trial court set aside the jury verdicts on counts four and five on double jeopardy grounds. Accordingly, the defendant was not sentenced on those counts. A later order by the trial court indicated that counts four and five were resolved "as they were merged with counts 1 and 2." Relevant to this appeal, the defendant was sentenced to a term of life in prison with a mandatory minimum sentence of 25 years on count one. The defendant argues that the trial court erred by failing to act on counts four and five, and improperly concluded that the counts were merged with counts one and two. We disagree. The trial court did not adjudicate the defendant guilty of counts four and

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