final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No.
Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
defendant appeals his conviction and sentence for kidnapping
with a firearm, aggravated assault with a firearm, and
battery. He argues that: (1) the court erred in denying his
motion for mistrial after the prosecutor commented on his
right to remain silent; (2) the court erred in sentencing
him; and (3) that double jeopardy bars his convictions for
aggravated assault with a firearm and kidnapping with a
firearm. The State agrees there is an error in sentencing. We
agree with the State and reverse and remand on the sentencing
issue. We affirm on the remaining issues.
defendant and victim were married at the time of the
incident. The victim had previously been in a long-term
relationship with another man. The victim's daughter
lived with the victim and defendant.
surprisingly, the defendant's and victim's version of
the facts conflict. According to the victim, she was asleep
in a guest room of their house when the defendant pushed the
door open and accused her of having a relationship with her
quarreled over the issue. With a gun in his hand, the
defendant told the victim he was going to shoot her and her
daughter in the head. When the victim tried to take the gun
away, it fired.
defendant then put the gun to the victim's head, walked
her to the front door, and forced her into his car. He
threatened to kill the ex-boyfriend, and asked for directions
to his house. The couple struggled. The victim grabbed the
defendant in the crotch; the defendant bent over and bit her
police officer observed the defendant almost hit a car. The
officer followed them home, asked them where they were coming
from, and the defendant told the officer they were coming
from a friend's house. The victim was unable to get the
officer's attention to indicate there was something
the officer left and they reentered the house, the defendant
revealed that he had two guns. The victim told him to throw
them in the lake next to their house. He refused and instead
drove away to dispose of the guns elsewhere. The victim woke
her daughter and fled to a neighbor's house.
victim told the neighbor that the defendant tried to kill
them. The daughter called the police. At the request of the
police, the daughter called the defendant, who then spoke to
to the defendant, when he entered the guest bedroom, the
victim was sitting on the bed counting money from a duffel
bag. He then asked about the money, and she pulled a
semi-automatic pistol from the bag and put it against ...