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Puzio v. State

Florida Court of Appeals, Fourth District

August 7, 2019

DAVID PUZIO, Appellant,
v.
STATE OF FLORIDA, Appellee.

         No further motions for rehearing shall be permitted.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 94-12537CF10A.

         On Appellant's Motion for Rehearing

          Ashley D. Kay and Kevin J. Kulik, P.A., Fort Lauderdale, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

          GERBER, J.

         We deny appellant's motion for rehearing. However, we substitute the following opinion for the opinion which we issued on May 8, 2019.

         The 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 775.082(1)(b)1.

          We 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 discussion.

         Procedural History

         In 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.

         At 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.

         The 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.

         The 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 ...


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