5D09-4656 State v. Jason Morse

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-4656

Case Date: 11/28/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

STATE OF FLORIDA, Appellant/Cross-Appellee, v. JASON ROBERT MORSE, Appellee/Cross-Appellant. ________________________________/ Opinion filed December 2, 2011 Appeal from the Circuit Court for Orange County, Jenifer Davis, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant/CrossAppellee. James S. Purdy, Public Defender, and Stephanie H. Park, and Steven N. Gosney, Assistant Public Defenders, Daytona Beach, for Appellee/Cross-Appellant. PER CURIAM. Jason Robert Morse was found guilty by an Orange County jury of three counts of attempted second-degree murder of a law enforcement officer, with a firearm, and one count of fleeing or attempting to elude a law enforcement officer at high speed or with wanton disregard. The crimes were part of a crime spree and chase during which Morse committed criminal offenses in both Orange County and Seminole County, CASE NO. 5D09-4656

Florida. Morse has been separately convicted and sentenced in Seminole County for the offenses he committed there.1 Following return of the Orange County verdicts, the trial judge granted Morse a new trial on one of the attempted second-degree murder convictions and on the fleeing and eluding conviction, based upon Morse's double jeopardy argument. The State

appealed this order, but only challenges the trial court's determination that conviction on the second-degree murder count violated double jeopardy. As for the fleeing count, the State agrees to the dismissal of this charge on double jeopardy grounds.2 On cross-appeal, Morse argues that he is entitled to a new trial on all the seconddegree murder convictions based upon fundamental error in the jury instructions on the lesser charge of attempted manslaughter. The State concedes that Morse is entitled to this relief under Burton v. State, __ So. 3d __, 2011 WL 1326258 (Fla. 5th DCA 2011), but correctly notes that Burton conflicts with the Fourth District's decision in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So. 3d 1262 (Fla. 2011). We agree with the State that the trial court erred in its determination that the attempted second-degree murder conviction was barred by double jeopardy, but remand for a new trial on all of the second-degree murder charges as required by Burton.

The Seminole County convictions stemmed from Morse's robbery of a Seminole County Walgreen's pharmacy at gunpoint, the armed carjacking of a car from two women outside that building, and an ensuing high-speed chase during which Morse fired upon Seminole County sheriff's deputies, Orlando and Lake Mary police officers, and State Highway Patrol troopers. The State concedes to dismissal of the fleeing charge on double jeopardy grounds because Morse was already convicted of this same offense in Seminole County related to the chase that occurred in both counties. We accept this concession, although we question whether double jeopardy principles require dismissal of the charge. Cf. Murphy v. State, 723 So. 2d 313 (Fla. 1st DCA 1998). 2
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The Fifth Amendment's guarantee against double jeopardy3 "protects against a second prosecution for the same offense after conviction . . . . [and] against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). Morse argues that under these principles he cannot be convicted of attempted murder for shooting at Officer Reinaldo Rivero, Jr., in Orange County, because he has already been convicted of attempted murder for shooting at Officer Rivero in Seminole County.4 If the Orange and Seminole County shootings occurred in a single criminal episode, Morse would be correct that the State would be barred from prosecuting him for his conduct in Orange County after procuring the Seminole County conviction. See, e.g., Williams v. State, 959 So. 2d 790 (Fla. 2d DCA 2007). "The test for determining whether two crimes occurred in the same criminal episode is whether there was a temporal break between the crimes, such that the defendant had an opportunity to pause, reflect, and form a new criminal intent." Beahr v. State, 992 So. 2d 844, 846 (Fla. 1st DCA 2008) (citations omitted), abrogation on other grounds recognized in Smith v. State, 41 So. 3d 1041 (Fla. 1st DCA 2010). "If there was such a break, then the crimes occurred in separate criminal episodes and may be punished separately." Id. (citation omitted).

The Fifth Amendment of the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. Likewise, Article I, section 9, of the Florida Constitution provides a similar protection: "No person shall ... be twice put in jeopardy for the same offense." Art. I,

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