further motions for rehearing shall be permitted.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul L. Backman, Judge; L.T. Case No.
Appellant's Motion for Rehearing
D. Kay and Kevin J. Kulik, P.A., Fort Lauderdale, for
Moody, Attorney General, Tallahassee, and James J. Carney,
Assistant Attorney General, West Palm Beach, for appellee.
appellant's motion for rehearing. However, we substitute
the following opinion for the opinion which we issued on May
defendant appeals from his re-sentences for two counts of
first degree murder and one count of armed carjacking
committed while he was a juvenile. The defendant argues the
circuit court erred in four respects: (1) by sentencing him
on the first degree murder counts under section
775.082(1)(b)1., Florida Statutes (2017), when no jury has
found beyond a reasonable doubt that he actually killed,
intended to kill, or attempted to kill the victims; (2) by
not reviewing his penalty phase witnesses' testimony from
his original sentencing; (3) by departing from the guidelines
in sentencing him on the armed carjacking; and (4) by
increasing his sentences on the first degree murder counts
several months after pronouncing sentence, by adding
forty-year mandatory minimums required under section
reverse on the defendant's first argument, and remand for
correction of his sentences on the first degree murder counts
under section 775.082(1)(b)2., Florida Statutes (2017).
Because section 775.082(1)(b)2. does not require forty-year
mandatory minimums, we also reverse the inclusion of the
forty-year mandatory minimums as referenced in the
defendant's fourth argument, and do not need to reach the
defendant's double jeopardy argument. We affirm on the
defendant's second and third arguments without further
1994, the state charged the then sixteen-year-old defendant
with two counts of first degree murder and one count of armed
carjacking, and sought the death penalty.
trial, the state presented evidence that the defendant was
one of three men in the backseat of a car, with two women in
the driver's and front passenger's seats. The men
intended to rob the victims, and directed the women to drive
to a location, where the defendant shot and killed the women.
The defendant presented evidence that one of the other men
was the shooter.
state ultimately argued to the jury, and the trial court
instructed the jury, that the defendant could be found guilty
of first degree murder as either a premeditated act or under
a felony murder theory if one of the other men was the
shooter. The verdict form asked the jury if the defendant was
guilty of first degree murder, but did not ask the jury to
decide between premeditation and felony murder.
jury found the defendant guilty on all three counts. During
the penalty phase, the jury was asked to consider aggravating
and mitigating factors. Next to the mitigating factor,
"the defendant was an accomplice in the offense for
which he is to be sentenced but the offense was committed by
another person and the defendant's participation was