       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   FREDDIE LEE McLAWHORN, JR.,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-2508

                            [January 6, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan Vaughn, Judge; L.T. Case No. 562010CF000850B.

  Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Freddie McLawhorn was convicted of several crimes,
including felony murder and burglary, stemming from a break-in that
resulted in the death of a young woman. Appellant appeals both the
admission of certain testimony at trial and his sentence. Although we hold
the trial court properly admitted the testimony, we agree that Appellant’s
sentence is improper and must be recalculated on remand.

    First, we hold the trial court did not err by admitting testimony
recounting Appellant’s co-conspirator’s statements.            Out-of-court
statements offered for the truth of the matter asserted are hearsay and
generally inadmissible. § 90.801, Fla. Stat. (2013). However, under
section 90.803(18)(e), Florida Statutes (2013), a statement offered against
a party that is “[a] statement by a person who was a coconspirator of the
party during the course, and in furtherance, of the conspiracy” is
admissible as an exception to the hearsay rule. In this case, the State
sufficiently proved the existence of a conspiracy, as there was evidence at
trial that the men purchased ammunition together for use in the robbery,
drove to the robbery together, and split the stolen goods. This is suitable
proof of conspiracy to allow the admission of the co-conspirator’s
statements under section 90.803(18)(e).

   Appellant also argues the trial court improperly calculated his
sentence. Appellant was convicted of four counts: 1) felony murder; 2)
burglary with a firearm causing great bodily harm or death; 3) possession
of a firearm by a felon; and 4) possession of ammunition by a felon.
Appellant was sentenced to life for both counts 1 and 2, to be served
concurrently. He was sentenced as a habitual felony offender on counts 3
and 4, and received thirty years for count 3, to be served consecutively to
counts 1 and 2, and another thirty years for count 4, to be served
consecutive to the time from count 3. Appellant argues that the court
should not have ordered his sentence in count 3 to run consecutively to
the sentences from counts 1 and 2 because it arose from the same episode
as those counts. He contends that Hale v. State, 630 So. 2d 521 (Fla.
1993), prevents the imposition of a habitual felony offender sentence
consecutively to other offenses from the same episode. We agree.

   In Hale, a defendant was charged with both possession and sale of
cocaine. Id. at 522. The trial court sentenced him to two twenty-five-year
violent felony offender terms, to be served consecutively. Id. at 523. The
Florida Supreme Court reversed, holding that where a sentence was
already enhanced under section 775.084, Florida Statutes, the “enhanced
maximum sentences must run concurrently.” Id. at 524. The court found:

      nothing in the language of the habitual offender statute which
      suggests that the legislature also intended that, once the
      sentences from multiple crimes committed during a single
      criminal episode have been enhanced through the habitual
      offender statutes, the total penalty should then be further
      increased by ordering that the sentences run consecutively.

Id. In the instant case, the State maintains that the third count,
possession of a firearm by a felon, was not necessarily based on the same
criminal episode as the murder and robbery counts. In furtherance of its
argument, the State contends Appellant must have had the gun before he
actually arrived at the victim’s home. However, the State did not present
evidence of another time in which Appellant possessed a firearm (in
contrast to the possession of ammunition count, as there was security
video entered into evidence that showed Appellant purchasing the
ammunition several days before the shooting).

    “Whether . . . offenses were committed during a single criminal episode
is a question of fact.” Roberts v. State, 990 So. 2d 671, 675 (Fla. 4th DCA

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2008) (quoting Williams v. State, 804 So. 2d 572, 574 (Fla. 5th DCA 2002)).
“There is, however, no bright line for determining whether a criminal
episode is single for purposes of evaluating consecutive enhancement
sentences.” Wilcher v. State, 787 So. 2d 150, 152 (Fla. 4th DCA 2001). “In
determining whether multiple crimes arise out of one criminal episode for
purpose of consecutive sentencing, courts have generally considered
factors such as the nature, time, place and number of victims.” Id.
(quoting Smith v. State, 650 So. 2d 689, 591 (Fla. 3d DCA 1995)).

    In this case, the trial court did not make an explicit finding as to
whether this was a single episode. The charging instrument only accused
Appellant of having a firearm on “March 6, 2010 or March 7, 2010,” which
corresponds to the night of the crime. Thus, the record indicates that this
offense (possession of a firearm by a felon), the robbery, and the murder
were part of a single criminal episode. Therefore, consistent with Hale,
Appellant’s habitual felony offender sentence on count 3 should not have
been imposed consecutively to the sentences for counts 1 and 2.

   Accordingly, we remand to the trial court for resentencing in
accordance with this opinion.

   Reversed in part and remanded for resentencing.

WARNER and TAYLOR, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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