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Lugo v. State2/20/2003
tence. We also note that the sentence for each offense did not exceed the statutory maximum. We deny relief on this point.
Lugo also contends that the trial court erred in ordering that his three-year mandatory minimum sentences for robbery with a firearm and kidnaping with a firearm be served consecutively. The robbery occurred when valuables were taken at gunpoint from Schiller while he was inside the van that was transporting him to the warehouse where he would be kept captive for approximately a month. With regard to Lugo's use of a firearm in the commission of a kidnaping, the trial judge instructed the jury as follows:
If you find that Daniel Lugo committed kidnaping and/or extortion, and you also find that during the commission of the crime he carried and/or displayed and/or used and/or threatened to use and/or attempted to use a firearm, you should find him guilty of kidnaping and/or extortion with a firearm.
Section 775.021(4)(a), Florida Statutes (2001), states:
Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
Lugo was the mastermind of the plan to abduct Schiller. Lugo's involvement in the use of the firearm in the kidnaping of Schiller was "sufficiently separate in nature, time, and place from the [robbery with a firearm] charge to justify application of . . . consecutive mandatory minimum " sentences for both robbery with a firearm and kidnaping with a firearm. Murray v. State, 491 So. 2d 1120, 1124 (Fla. 1986). This involvement occurred primarily at the warehouse where Schiller was held, thereby creating an offense which "represented a separate and additional violation of the victim's most basic rights." Id. We conclude that it was within the trial court's discretion to impose the consecutive sentences and we therefore deny relief.
Proportionality
Lugo contends that his sentences of death are not proportional because co-defendant Jorge Delgado, through a plea agreement with the State, received a fifteen-year prison sentence for his role in the events surrounding the attempted murder of Marc Schiller, and a five-year prison sentence for his role in the murders of Frank Griga and Krisztina Furton. Delgado agreed to testify for the State and was one of its key witnesses, particularly with regard to the abduction and attempted murder of Schiller. With regard to this issue, the trial court said the following in its sentencing order:
lthough Delgado was actively involved in the crimes against Marcelo Schiller, he was hardly involved in the Griga/Furton crimes. The bulk of his involvement was in the disposal of the bodies. The evidence did not reflect that he was ever involved in the plan to kidnap, extort or murder Griga and Furton. In fact, Delgado received a call from Lugo when he needed someone to dispose of the Lambourghini after Griga's murder. Delgado assisted in the disposal of the bodies of the victims. To that extent, he was more of an accessory after the fact. He provided credible testimony at trial and was instrumental in obtaining the convictions. He was the only person who could say what actually happened in Doorbal's apartment to Griga and Furton, based upon his observations and statements made to him by the
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