FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3244
                 _____________________________

ROBERT JACOBY TURNER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.

                         June 28, 2019


BILBREY, J.

    Appellant challenges his convictions and sentences for one
count of second degree murder and seven counts of attempted
second degree murder claiming that the jury verdict was a true
inconsistent verdict. 1 See Brown v. State, 

(Fla.
2007) (explaining that a true inconsistent verdict occurs where
the finding of not guilty on one count negates an element

    1 Appellant was also convicted and sentenced for one count of
possession of a firearm by a convicted felon based on his
possession of a firearm at the time he was arrested for the other
offenses. That conviction and sentence are not challenged on
appeal. Appellant was also found not guilty of other offenses
which we do not address here.
necessary for conviction on another count). We hold that
although the jury verdict was factually inconsistent, it does not
amount to a true inconsistent verdict and therefore affirm.

     Appellant was charged with a drive-by shooting based on his
firing multiple shots from a handgun out of the passenger
window of an automobile at a group assembled outside a
convenience store. As a result of the shooting Keshawn Rankin
was killed, and another victim was injured. At trial, the driver of
the automobile and the other two passengers all testified that
Appellant fired at the group from the automobile. Appellant’s
defense was that one of the other passengers was responsible for
the shooting. Other than testimony regarding Appellant firing
the handgun, there was no testimony of Appellant committing
any other “act imminently dangerous to another, and evincing a
depraved mind” so as to support second degree murder or
attempted second degree murder. See §§ 782.04(2) & 777.04,
Fla. Stat. (2016). There was also no testimony to support
Appellant’s guilt as a principal to the crimes rather than the
actual perpetrator, and the jury was not instructed that
Appellant could be found guilty as a principal. See § 777.011,
Fla. Stat. (2016).

     The jury found the Appellant guilty of the second degree
murder of Mr. Rankin and of attempted second degree murder of
the seven other victims. The jury was given a detailed verdict
form and asked to find on each of these counts whether Appellant
discharged or possessed a firearm during the commission of the
offenses. For the murder and the attempted murder counts the
jury found that Appellant “did not actually possess a firearm
during the commission of the offense.”

     After the jury returned the verdict, Appellant filed a motion
for arrest of judgment and for a judgment of acquittal claiming a
true inconsistent verdict. The trial court denied the motions.
Appellant was sentenced to life imprisonment for the murder of
Mr. Rankin and 30 years for each of the seven counts of
attempted second degree murder to run concurrent to the murder
count. On appeal, Appellant argues the trial court committed
error by not granting the motions claiming a true inconsistent
verdict.

                                2
     Clearly the verdict was factually inconsistent because the
jury had no evidence to support a finding of guilt against
Appellant unless Appellant possessed and discharged a handgun
at the assembled group. However, as the Florida Supreme Court
has stated, a true inconsistent verdict requires more than just
factual or logical inconsistency:

         As a general rule, inconsistent jury verdicts are
    permitted in Florida. Eaton v. State, 

    (Fla. 1983); Goodwin v. State, 

, 

(1946); Gonzalez v. State, 

(Fla. 4th
    DCA), review dismissed, 

(Fla. 1983).
    Inconsistent verdicts are allowed because jury verdicts
    can be the result of lenity and therefore do not always
    speak to the guilt or innocence of the defendant. See
    

. Moreover, defendants have
    adequate procedural and constitutional protections to
    ensure that their convictions are not erroneous, whereas
    the State does not have the benefit of any reciprocal
    protections. Cf. Potts v. State, 

(Fla. 1982)
    (relied on similar reasoning to hold that defendant tried
    separately from co-conspirator is not entitled to raise
    conviction of co-conspirator for a lesser offense as a bar
    to defendant’s conviction for a greater offense).

         This Court has recognized only one exception to the
    general rule allowing inconsistent verdicts.        This
    exception, referred to as the “true” inconsistent verdict
    exception, comes into play when verdicts against one
    defendant on legally interlocking charges are truly
    inconsistent.    As Justice Anstead explained when
    writing for the Fourth District Court of Appeal in
    Gonzalez, true inconsistent verdicts are “those in which
    an acquittal on one count negates a necessary element
    for conviction on another 

. For
    example, this Court has required consistent verdicts
    when

        the underlying felony was a part of the crime
        charged—without the underlying felony the
        charge could not stand. The jury is, in all

                                3
         cases, required to return consistent verdicts as
         to the guilt of an individual on interlocking
         charges.

    

; see Mahaun v. State, 

1158 (Fla. 1979) (verdict of guilty as to felony-murder
    set aside where jury failed to find defendant guilty of
    the underlying felony); Redondo v. State, 

    (Fla. 1981) (defendant could not be convicted of unlawful
    possession of a firearm during a commission of felony
    where the jury failed to find the defendant guilty of any
    felony). An exception to the general rule is warranted
    when the verdicts against a single defendant are truly
    inconsistent because the possibility of a wrongful
    conviction in such cases outweighs the rationale for
    allowing verdicts to stand.

State v. Powell, 

, 732-33 (Fla. 1996); see also

(holding that a true inconsistent
verdict occurred where a defendant was convicted of felony
murder along with the lesser included offense of petit theft
instead of the charged offense of armed robbery; misdemeanor
petit theft conviction meant that the “engaged in the perpetration
of a felony” element of felony murder was lacking).

     We agree that the trial court here was correct to find that
the verdict was not truly inconsistent in denying the motion for
arrest of judgment and the motion for a judgment of acquittal.
The second degree murder and attempted second degree murder
counts here are not legally interlocking with another count.
Second degree murder and attempted second degree murder do
not include possession or discharge of a firearm as an element of
the crimes. See §§ 782.04(2) & 777.04(1), Fla. Stat. Instead,
possession or discharge of a firearm while committing or
attempting to commit certain felonies including second degree
murder results in certain mandatory sentences under section
775.087, Florida Statutes (2016), the 10-20-Life statute. 2


    2The amended information did allege that Appellant killed
Mr. Rankin “by shooting the said Keyshawn Rankin.” The
amended information also alleged the attempted murders were
                                4
Although logically under the facts presented to the jury there was
no way Appellant could have committed the murder and
attempted murder without possessing and discharging a firearm
that does not make the verdict truly inconsistent.

     Appellant argues that our case Gerald v. State, 

(Fla. 1st DCA 2014), supports his conviction that the jury
here returned a true inconsistent verdict, but we find Gerald to
be distinguishable. In Gerald, the defendant was charged with
aggravated assault. 

Although aggravated assault, as
defined by section 784.021(1), Florida Statutes, can be committed
either (a) “[w]ith a deadly weapon without intent to kill; or (b)
“[w]ith intent to commit a felony,” in Gerald the jury had
evidence of and was only instructed of (a). Gerald, 

. Therefore, when the jury returned a guilty verdict as to
aggravated assault by Gerald but also found that he did not
possess a firearm when he committed the aggravated assault, the
jury there returned a true inconsistent verdict. 

In
Gerald, a necessary element of aggravated assault under section
784.021(1)(a) was negated by the jury finding that he did not
possess a firearm; whereas in every murder or attempted murder
charge in Florida, a firearm is never a necessary element of the
offense.

    We find State v. Carswell, 

(Fla. 4th DCA 2005),
argued by the State below in opposing the motions, to be
persuasive. There, Carswell was charged with attempted second
degree murder for allegedly shooting the victim during a “drug


committed by shooting or shooting at the other victims. The
amended information also made other allegations sufficient to
seek enhancement of the potential sentence under section
775.087(2), Florida Statutes (2016). See Arnett v. State, 

87, 88 (Fla. 1st DCA 2013) (“In order to enhance a defendant’s
sentence under section 775.087(2), the grounds for enhancement
must be clearly charged in the information.”). We believe that
any mention of shooting or firearm in the amended information is
in reference to potential sentence enhancement and not the State
gratuitously adding an additional element to the crimes not
otherwise required by statute.

                                5
deal gone bad.” 

The jury returned a verdict finding
Carswell guilty of the lesser offense of aggravated battery “but
inexplicably determined that Carswell did not possess a firearm.”

Like here, the jury verdict in Carswell was factually
inconsistent because there was no way the victim could have been
shot if Carswell did not use a firearm. But that did not make the
verdict truly inconsistent since the necessary elements to prove
aggravated battery do not require use of a firearm. 

(citing § 784.045, Fla. Stat. (2002)). See also State v. McGhee, 

(Fla. 1st DCA 2015) (holding that jury verdict finding
that defendant did not possess a firearm did not negate element
of aggravated assault with a deadly weapon where the nature of
the weapon was in dispute). The court in Carswell concluded, as
we conclude here, that “the jury lawfully exercised its right to
grant a jury pardon” in finding him guilty of the offense but
rejecting findings to support a 10-20-Life sentence. 

    AFFIRMED.

WETHERELL and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Victor Holder, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.




                                 6