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McCormack v. State

Florida Court of Appeals, Fourth District

June 21, 2017

ORLANDO MCCORMACK, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dennis D. Bailey, Judge; L.T. Case No. 12-16738 CF10A.

          Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

          May, J.

         The 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.

         The 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.

         Not 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 ex-boyfriend.

          They 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.

         The 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 hand.

         A 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 wrong.

         After 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.

         The 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 the police.

         According 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 ...


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