Hill v. State
Hill v. State
Opinion of the Court
Anthony D. Hill appeals his convictions for first-degree murder and armed robbery
The trial court initially sentenced Hill to departure sentences, but gave no oral or written reasons for departure. Six days later the trial court resentenced Hill and entered a written order of departure. The supreme court has held that a written order stating the reasons for departure must be filed on the day of sentencing. Ree v. State, 565 So.2d 1329 (Fla. 1990). The trial court erred in failing to do so. Because the trial court did not state oral reasons for departure, it cannot resentence above the guidelines at a later time and then state the reasons for departure. See Pope v. State, 561 So.2d 554 (Fla. 1990). We reverse Hill’s sentences with instructions to the trial court to impose sentences within the guidelines.
We further note, and the state concedes, that the trial court failed to enter a written order of revocation of community control. We remand case number 89-5056 for entry of a proper order of revocation setting forth the conditions of community control to which Hill pleaded guilty. See Haynes v. State, 571 So.2d 1380 (Fla. 2d DCA 1990).
Last, the written Sentence document in case number 89-5056 erroneously refers to an escape from confinement offense as count two instead of count three. It is necessary for the trial court upon resen-tencing to have the Sentence document show the sentence imposed for that crime as count three.
The convictions are affirmed. The eases are remanded for resentencing and entry of a proper revocation order.
. The facts of these charges are not important to the issues on appeal. Generally, the evidence established that Hill shot and killed a manager of a Circle K store in the course of an armed robbery.
Concurring Opinion
concurring specially.
I agree with the majority. I write separately to focus upon a Neil
Hill alleged that the trial court erred in connection with the prosecution’s striking of a black juror from the group of prospective jurors. Hill is black, and the victim of the crimes was white. During initial questioning of the jury, the court asked, “Have any of you ever testified as a witness in any type of litigation?” Several jurors had this experience. Maggie Patterson, a black woman, acknowledged testifying as to witnessing an altercation between the police and a man which occurred in a parking lot in Tampa seventeen or eighteen years earlier. In answering questions about this incident, Patterson did not mention the race of either participant. She stated that she would not hold the actions of individual officers many years ago against the department. The prosecutor stated that he doubted that any of the witnesses would have been on the force at that time. The state’s first challenge for cause was to a black woman with strong anti-death penalty feelings. It was successful. The state’s third peremptory challenge was to Maggie Patterson. The defense objected,
But for Green, I would agree with Hill and recommend that this matter be remanded for a new trial. The defense pointed out that Patterson was black and that nothing in the questioning revealed any reason to strike her.
The supreme court established the following as the initial burden for the party objecting to the other side’s use of a peremptory challenge:
A party concerned about the other side’s use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race.
State v. Neil, 457 So.2d 481, 486 (Fla. 1984). This court, in Green, sought to clarify the initial burden aspect of challenging the state’s use of a peremptory challenge to strike a member of a distinct racial group. Green held that the defendant must demonstrate that the state engaged in a pattern of excluding a minority group or make some other showing of a strong likelihood that the challenge was solely because of race. Although Green espouses that it is merely following precedent, it does appear to require more from the defense than the trend has been since Slappy. This court has cited to Green with approval, and Green remains the law in this district. See McNair v. State, 579 So.2d 264 (Fla. 2d DCA 1991); Johnson v. State, 574 So.2d 1116 (Fla. 2d DCA 1990), review denied, 582 So.2d 623 (Fla. 1991); American Security Ins. Co. v. Hettel, 572 So.2d 1020 (Fla. 2d DCA 1991).
Hill challenges Green in the following two respects: (1) Green makes the initial burden too strict and (2) once the prosecutor expresses reasons which appear to be racially motivated (as the trial court initially implicitly found in this case when it denied the peremptory challenge), then those reasons must be considered even if
Green’s, emphasis on a pattern seems inconsistent with Slappy’s deemphasis on numbers. Slappy also holds that any doubt that even one peremptory challenge was racially based must be resolved in the complaining party’s favor. Green’s strict standard for establishing the initial burden appears contrary to, at least in spirit, the following language of Slappy: “[W]e affirm that the spirit and intent of Neil was not to obscure the issue in procedural rules governing the shifting of burdens of proof, but to provide broad leeway in allowing parties to make a prima facie showing that a ‘likelihood’ of discrimination exists.” 522 So.2d at 21-22.
The strongest argument Hill makes is that the trial court should not be made to ignore a racially-based reason if the defendant failed to meet his initial burden. The supreme court recognized that a trial judge would be warranted in granting a mistrial
. See State v. Neil, 457 So.2d 481 (Fla. 1984), clarified, State v. Castillo, 486 So.2d 565 (Fla. 1986).
. Although Patterson had a brother who was convicted of theft, a white woman, who the state did not challenge, had a son who was convicted of burglary and theft.
. The supreme court recently clarified that a granting of a mistrial is only one remedy when the trial court finds that a peremptory challenge was based upon racial bias and that a trial court may fashion a remedy appropriate to the facts of the case, including the seating of the improperly challenged juror. Jefferson v. State, 595 So.2d 38 (Fla. 1992).
Reference
- Full Case Name
- Anthony D. HILL v. STATE of Florida
- Cited By
- 2 cases
- Status
- Published