Third District Court of Appeal

State of Florida 

Opinion filed November 3, 2021.

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No. 3D19-1941

Lower Tribunal No. F12-19634

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Alphonso Lucas,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Teresa Mary 

Pooler, Judge.

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant 

Public Defender, for appellant.

Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney 

General, for appellee.

Before FERNANDEZ, C.J., and EMAS and BOKOR, JJ. 

EMAS, J.
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ON MOTION FOR REHEARING, CLARIFICATION AND CORRECTION

We deny appellant’s motion for rehearing and clarification. We grant 

appellant’s motion to correct opinion, withdraw our previously issued opinion, 

and substitute the following opinion in its stead. 

Defendant Alphonso Lucas was charged with first-degree murder of 

Terrilyn Gray, armed burglary with an assault, aggravated animal cruelty, 

and attempted first-degree murder and attempted felony murder of Curtina 

Gray. Following a jury trial, Lucas was found guilty, as charged, of firstdegree murder of Terrilyn Gray, armed burglary with an assault, and 

aggravated animal cruelty. On the counts of attempted first-degree murder 

and attempted felony murder of Curtina Gray, the jury found Lucas guilty on 

each count of the lesser-included offense of aggravated battery. 

Lucas raises five points on appeal, asserting the trial court erred in: 1) 

limiting defense counsel’s cross-examination of two state witnesses; 2) 

overruling the defense objection to the State’s questions on crossexamination of the defendant regarding his prior convictions; 3) permitting a 

police detective to testify that a substance found on a weapon impounded at 

the scene of the crime did not appear to be blood; 4) denying Lucas his 

fundamental right to a sentencing hearing; and 5) allowing dual convictions 
3

and imposing separate sentences for aggravated battery upon a single 

victim, in violation of double jeopardy.

We find no abuse of discretion in the trial court’s evidentiary rulings 

during trial and affirm the first three claims. See McDuffie v. State, 970 So. 

2d 312, 324 (Fla. 2007) (holding a trial court’s limitation on the examination 

of a witness is reviewed for an abuse of discretion); Farr v. State, 230 So. 3d 

30 (Fla. 4th DCA 2017) (holding a trial court's evidentiary rulings concerning 

the defendant's prior convictions is reviewed for an abuse of discretion);

Fotopoulos v. State, 608 So. 2d 784, 791 (Fla. 1992) (noting that a party may 

attack the credibility of any witness by evidence of prior conviction, and that 

“this inquiry is generally restricted to the existence of prior convictions and 

the number of convictions . . . . However, when a defendant attempts to 

mislead or delude the jury about his prior convictions, the State is entitled to 

further question the defendant concerning the convictions in order to negate 

any false impression”) (citations omitted); McDade v. State, 290 So. 3d 547, 

547 n.1 (Fla. 3d DCA 2019) (same). See also § 90.701, Fla. Stat. (2019) 

(providing that a lay witness’ testimony “about what he or she perceived may 

be in the form of inference and opinion when: (1) The witness cannot readily, 

and with equal accuracy and adequacy, communicate what he or she has 

perceived to the trier of fact without testifying in terms of inferences or 
4

opinions and the witness's use of inferences or opinions will not mislead the 

trier of fact to the prejudice of the objecting party; and (2) The opinions and 

inferences do not require a special knowledge, skill, experience, or training”); 

Johnson v. State, 215 So. 3d 644, 651 (Fla. 5th DCA 2017) (holding a trial 

court’s determination to permit lay opinion testimony is reviewed for an 

abuse of discretion); Bolin v. State, 41 So. 3d 151 (Fla. 2010); Floyd v. State, 

569 So. 2d 1225, 1231-32 (Fla. 1990) (finding no error in permitting police 

officer to testify “that a tablecloth found lying on the bed ‘appeared like 

someone had taken some type of object that had blood on it and wiped it on 

there and left it on the bed;” holding: “Lay witness opinion is admissible if it 

is within the ken of an intelligent person with a degree of experience . . . . 

We find the officers' testimony within the permissible range of lay observation 

and ordinary police experience”). Additionally, we determine that any

arguable error in the trial court’s evidentiary rulings was harmless. State v. 

DiGuilio, 491 So. 2d 1129 (Fla. 1986).

We further conclude the trial court did not deny Lucas his fundamental 

right to a sentencing hearing. Pursuant to Florida Rule of Criminal Procedure 

3.720(b), at sentencing “[t]he court shall entertain submissions and evidence 

by the parties that are relevant to the sentence.” The record establishes that, 

after the jury returned its verdict and it was published, the trial court initially 
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stated it would set a future sentencing date. However, defense counsel 

advised the court “[you] can sentence him now.” The court explained that it 

was considering setting a future sentencing date, so the victims could be 

heard at sentencing, because the hour was late (near midnight). Thereafter, 

defense counsel, also noting it was late, requested the sentencing be reset 

for “a few weeks,” but offered no other reason for this request. The State 

asked the court to proceed to sentencing, advising that although the victims 

were aware that “they have the right to speak, to be heard on the record. . . 

they would rather waive that right and just finalize it right now.” The court 

proceeded to sentencing. At no time did defendant or his counsel indicate 

they were unprepared to go forward, nor request additional time to obtain 

submissions or to present witnesses or mitigating evidence. Indeed, the only 

basis asserted by the defense for seeking to reset the sentencing was the 

late hour.1

1 We note that, as to the conviction for first-degree murder, the trial court had 

no sentencing discretion, and was required by statute to sentence defendant 

to life in prison. See § 782.04(1)(a), Fla. Stat. (2012) (providing premeditated 

first-degree murder is a capital felony, punishable by death or by life 

imprisonment without parole eligibility, as provided in section 775.082(1)(a)). 

The sentences imposed on the remaining counts were ordered to be served 

concurrently with each other and concurrently with the mandatory life 

sentence imposed on the first-degree murder conviction. We further note 

that, in light of his prior felony convictions, Lucas did not have the right to a 

presentence investigation. See Fla. R. Crim. P. 3.710(a); Slinger v. State, 

268 So. 3d 922, 924 (Fla. 5th DCA 2019) (holding: “The plain language of 
6

We find no abuse of discretion in the trial court’s decision to proceed 

to a sentencing hearing immediately following the return of the verdict, and 

further conclude that the trial court did not deprive Lucas of his due process 

right to a sentencing hearing or prevent him from offering submissions and 

evidence relevant to the sentence. Nunez v. State, 542 So. 2d 1061 (Fla. 

3d DCA 1989).

2

As to the defendant’s final claim on appeal, the State properly and 

commendably concedes that Lucas was improperly convicted of, and 

sentenced for, two counts of aggravated battery for a single act committed

against a single victim in the course of a single criminal episode. The State 

charged Lucas with attempted premeditated murder of the victim (Count 

Two), as well as attempted felony murder of the same victim (Count Six). As 

[rule 3.710(a)] clearly mandates that the trial court order a PSI prior to 

sentencing a first felony offender to incarceration”).

2 Although we hold that, under the circumstances presented in this case, the 

trial court did not abuse its discretion in proceeding to a sentencing hearing 

rather than setting it for a future date, we caution that best practices would 

generally militate against proceeding to a sentencing hearing at the midnight 

hour. While we do not question the trial court’s admirable intent, courts must 

nevertheless bear in mind that embarking upon a critical stage at such a late 

hour imposes a hardship not only upon those actively participating in the 

sentencing proceeding (the judge, defendant, defense counsel and 

prosecutor) but upon many others who must be present or who are otherwise 

involved in the process (the victim and next of kin, family members of the 

defendant, court reporter, bailiff, courtroom deputy, courtroom clerk, 

corrections officer (for an in-custody defendant), courthouse security and 

other personnel). 
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to each count, the jury found Lucas guilty of the lesser-included offense of 

aggravated battery, and the trial court sentenced Lucas on each count to 

fifteen years in prison. These dual convictions and sentences violate 

principles of double jeopardy, which “prohibits subjecting a person to multiple 

prosecutions, conviction, and punishments for the same criminal offense.” 

Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). See also § 775.021(4), 

Fla. Stat. (2012).3

3 Section 775.021(4)(a)–(b) provides:

(4)(a) 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. 

(b) The intent of the Legislature is to convict and sentence for 

each criminal offense committed in the course of one criminal 

episode or transaction and not to allow the principle of lenity 

as set forth in subsection (1) to determine legislative intent. 

Exceptions to this rule of construction are: 

1. Offenses which require identical elements of proof. 

2. Offenses which are degrees of the same offense as provided 

by statute. 
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We therefore reverse in part and remand to the trial court with 

directions to vacate the judgment and sentence for Count Six (aggravated 

battery as a lesser-included offense of attempted felony murder). We affirm 

in all other respects the judgments and sentences. 

Affirmed in part, reversed in part, and remanded with directions. 

3. Offenses which are lesser offenses the statutory elements of 

which are subsumed by the greater offense.