5D09-3771 Edwin Murphy v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-3771

Case Date: 10/18/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2010

EDWIN MURPHY, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed October 22, 2010 Appeal from the Circuit Court for Orange County, Timothy Shea, Judge. Edwin Murphy, Malone, pro se. Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee. PALMER, J. Edwin Murphy (defendant) appeals his judgment and sentence on the charge of attempted sexual battery. Determining that the trial court committed fundamental error by sentencing the defendant without appointing him counsel for his sentencing hearing, we reverse and remand for resentencing. A jury convicted the defendant of committing the crimes of attempted sexual battery and lewd or lascivious molestation. The defendant was sentenced to 30 years' incarceration for lewd or lascivious molestation, including a 25-year mandatory minimum sentence. The court did not enter an order adjudicating the defendant guilty or Case No. 5D09-3771 CORRECTED OPINION

sentence the defendant on his attempted sexual battery conviction because of the potential for a double jeopardy violation. On direct appeal, this court reversed and remanded the defendant's case, ruling: In this [Anders v. California, 386 U.S. 738 (1967)] appeal, Edwin Murphy's pro se brief raises one meritorious issue. Following a trial, Murphy was convicted of attempted sexual battery and lewd or lascivious molestation. At his sentencing hearing, Murphy sought dismissal of one of the two convictions on double jeopardy grounds. The trial judge, while conceding that a double jeopardy issue might exist, declined to rule on Murphy's motion. Instead, the court adjudicated Murphy guilty of lewd or lascivious molestation and sentenced him to prison, while taking no action on the attempted sexual battery charge. The State concedes this was error. A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act. Accordingly, we remand this matter to the trial court for the purpose of rendering an order with regard to the attempted sexual battery charge. If it is appropriate to adjudicate Murphy not guilty of that charge, it may do so. If not, it must adjudicate and sentence him for that crime. Murphy v. State, 16 So. 3d 269 (Fla. 5th DCA 2009) (citations and footnote omitted). Judge Griffin concurred specially with the following opinion: The trial court appeared to be uncertain about the double jeopardy issue in this case, which was understandable given the uncertain state of the law. Since this case was decided, however, the Florida Supreme Court issued its decision in State v. Meshell, 2 So.3d 132 (Fla.2009), which may inform the trial court's decision on remand. In this case, count one charged capital sexual battery, alleging that defendant's penis had union with the victim's vagina. Defendant was found guilty of attempted sexual battery, which means that defendant did some act in furtherance of the charged offense but failed to complete it. See

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