JOHN EARL ZIEGLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Earl Ziegler appealed his conviction for possession of a firearm by a convicted felon and possession of a short-barreled shotgun, challenging whether these convictions violated double jeopardy principles and whether separate sentences were proper. The court held that these are not the same offense for double jeopardy purposes but split on whether possession of a short-barreled shotgun is a lesser included offense.
The majority held that possession of a short-barreled shotgun and possession of a firearm by a convicted felon are not the same offense for double jeopardy purposes. The dissenting judge agreed on the double jeopardy issue but concluded that possession of a short-barreled shotgun is a lesser included offense in these circumstances, precluding separate sentences under Florida Statute 775.021(4).
[1] Possession of a short-barreled shotgun can be a lesser included offense of possession of a firearm by a convicted felon when the evidence shows the defendant possessed on…
[2] Separate sentences cannot be imposed for offenses where one is a lesser included offense of the other, as defined by statute.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, although such lesser offense is not an essential ingredient of the major offense alleged.”
Establishes the test for Category IV lesser included offenses under Florida law from Brown v. State
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Join FLexlaw to unlock all legal intelligenceZiegler, a convicted felon, possessed only one firearm—a short-barreled shotgun. He was charged in separate counts with both possession of a firearm b…
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ERVIN, J., concurs.
WENTWORTH, J., concurs and dissents with opinion.
WENTWORTH, Judge,
concurring in part, dissenting in part.
I concur with the majority view that possession of a short-barreled shotgun and possession of a firearm by a convicted felon are not the “same offense” for double jeopardy purposes; I further concur in the majority view that appellant’s other points are unavailing. However, I respectfully dissent on the issue of whether, in the circumstances of the present case, possession of a short-barreled shotgun is a lesser included offense of possession of a firearm by a convicted felon.
In Brown v. State, 206 So. 2d 377 (Fla.1968), the Florida Supreme Court defined four categories of lesser included offenses. Category IV
comprehends those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, although such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense.
In the present case the two crimes, possession of a firearm by a convicted felon and possession of a short-barreled shotgun, were charged in separate counts; however, the evidence at trial revealed that the appellant possessed only one firearm, a short-barreled shotgun. Therefore, in order to prove possession of a firearm by a convicted felon, the state in this case had to and did prove possession of a short-barreled shotgun. I would accordingly conclude that in these circumstances possession of a short-barreled shotgun is a lesser included offense of possession of a firearm by a convicted felon. Cf., Hicks v. State, 382 So. 2d 389 (Fla. 1st DCA 1980). Section 775.021(4), Fla.Stat., thus precludes separate sentences for each offense in this case. Hicks, supra.
I would remand for an order vacating the appellant’s sentence for possession of a short-barreled shotgun.
Cases With Similar Vibessemantic neighbors from the corpus
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Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…edure 3.150(a) permits the joinder of offenses in a single information only when they “are based on the same act or transaction or on two or more connected acts or transactions.” . This problem was dealt with, but not analyzed, in Ziegler v. State, 385 So. 2d 1168 (Fla. 1st DCA 1980), where the majority held the defendant had violated two separate statutes for constitutional double jeopardy purposes. The dissent in that case concedes the statutes were separate but erroneously went on to review the facts and d…
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Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…in Baker v. State, 431 So. 2d 263 (Fla. 5th DCA 1983), the dissent in Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982), Bartee v. State, 401 So. 2d 890 (Fla. 5th DCA 1981); Preston v. State, 397 So. 2d 712 (Fla. 5th DCA 1981), and Ziegler v. State, 385 So. 2d 1168 (Fla. 1st DCA 1980), rev. den. 392 So. 2d 1381 (Fla.1980). . See Judge Baskin and Judge Hubbart dissenting in Taylor v. State, 436 So. 2d 124 (Fla. 3d DCA 1983) and Judge Nesbitt and Judge Hub-bart dissenting in Schreiber v. Chase Federal Savings &…
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Rodriquez v. State, 443 So. 2d 236 (Fla. 5th DCA 1983)…417 So. 2d 260 (Fla.1982); Borges v. State, 415 So. 2d 1265 (Fla.1982); Taylor v. State, 138 Fla. 762, 190 So. 262 (1939); Monarca v. State, 412 So. 2d 443 (Fla. 5th DCA 1982); Preston v. State, 397 So. 2d 712 (Fla. 5th DCA 1981); Ziegler v. State, 385 So. 2d 1168 (Fla. 1st DCA 1980), rev. den., 392 So. 2d 1381 (Fla.1980); State v. Conrad, 243 So. 2d 174 (Fla. 4th DCA 1971). . In order to understand the dual nature of double jeopardy substantive analysis, the three step analysis described above is often nece…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. Ohio, 432 U.S. 161 (U.S. 1977)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Hicks v. State, 382 So. 2d 389 (Fla. 1st DCA 1980)