LEONEL RIOS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the convictions and sentences of Leonel Rios for second-degree murder and unlawful possession of a firearm. The court found no merit in his claims that his confession should have been suppressed or that a mandatory minimum sentence was improperly imposed.
The court held that the trial court did not err in denying the motion to suppress because the defendant waived his Miranda rights and gave a voluntary confession. The court also held that the mandatory minimum sentence was properly imposed as the jury found the defendant committed the murder with a firearm.
“There was sufficient evidence adduced below establishing that the defendant waived his Miranda rights and otherwise gave a free and voluntary confession.”
Establishes the court's reasoning for denying the motion to suppress the confession.
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Join FLexlaw to unlock all legal intelligenceLeonel Rios was convicted of second-degree murder and unlawful possession of a firearm. He appealed, arguing that his confession should have been supp…
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PER CURIAM.
This is an appeal by the defendant Leonel Rios from judgments of conviction and sentences for the crimes of (1) second-degree murder, and (2) unlawful possession of a firearm while engaged in a criminal offense.
We affirm. First, we see no merit in the defendant’s claim that the trial court erred in denying his motion to suppress his confession. There was sufficient evidence adduced below establishing that the defendant waived his Miranda rights and otherwise gave a free and voluntary confession. Jones v. State, 440 So. 2d 570 (Fla.1983). Because adversary proceedings had not been instituted against the defendant at the time he confessed, the defendant’s reliance on Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Traylor v. State, 498 So. 2d 1297 (Fla. 1st DCA 1986), is completely misplaced.
Second, we see no merit in the defendant’s claim that the three-year mandatory minimum sentence imposed on the second-degree murder conviction under Section 775.087(2), Florida Statutes (1985) was improper. The defendant was found guilty by the jury’s verdict of “second degree murder, a lesser included offense of count one of the indictment”; the indictment, in turn, charged the defendant with first-degree murder with a firearm. It therefore follows that the jury by its verdict made a finding that the defendant committed the murder as charged in the indictment with a firearm, but without the premeditation or felony-murder element required for first-degree murder. See §§ 782.04(l)(a)(l), (2), Fla.Stat. (1985).
This being so, it is plain that the trial court properly imposed the mandatory three-year minimum sentence herein on the second-degree murder conviction based on Section 775.087(2), Florida Statutes (1985), because the jury found the defendant guilty of a crime which involves a firearm. State v. Overfelt, 457 So. 2d 1385 (Fla.1984).
The final judgments of conviction and sentences under review are, in all respects,
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brindley Marshall v. State, 529 So. 2d 797 (Fla. 3d DCA 1988)…guilty of a lesser-included offense of the charge contained in the information. Although the State correctly points out that the court in Luttrell v. State, 513 So. 2d 1298 (Fla. 2d DCA 1987), approved enhancement, and this court, in Rios v. State, 510 So. 2d 1025 (Fla. 3d DCA 1987), approved the imposition of a mandatory minimum sentence under circumstances identical to the present case, the underlying premise of these cases — that the jury in finding the defendant guilty of the lesser-included offense neces…
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Hargrove v. State, 675 So. 2d 1010 (Fla. 4th DCA 1996)…mphasis supplied] 457 So. 2d at 1387. We are not the only appellate judges who read Overfelt that way. In Bowser v. State, 638 So. 2d 1042 (Fla. 1st DCA 1994), the first district reached the same conclusion and certified conflict with Rios v. State, 510 So. 2d 1025 (Fla. 3d DCA 1987). Yet Overfelt stated that the “factual matter properly decided by the jury” was “[t]he question of whether an accused actually possessed a firearm while committing a felony.” [emphasis supplied] 457 So. 2d at 1387. Here, there was…
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Small v. State, 556 So. 2d 780 (Fla. 1st DCA 1990)…984); Smith v. State, 445 So. 2d 1050 (Fla. 1st DCA 1984), the verdict’s use of the phrase “as charged” is sufficient to constitute such finding where the charging document on which the defendant is tried alleges the use of a firearm. Rios v. State, 510 So. 2d 1025 (Fla. 3rd DCA 1987); Luttrell v. State, 513 So. 2d 1298 (Fla. 2nd DCA 1987); Alejo v. State, 483 So. 2d 117 (Fla. 2nd DCA 1986); and Marshall v. State, 529 So. 2d 797, f.n. 2 (Fla. 3rd DCA 1988). AFFIRMED. SHIVERS, C.J., and SMITH, J., concur. .…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brewer v. Williams, 430 U.S. 387 (U.S. 1977)
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Jones v. State, 440 So. 2d 570 (Fla. 1983)
- Traylor v. State, 498 So. 2d 1297 (Fla. 1st DCA 1986)