WOODROW RAY CHERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cherry was charged with attempted first-degree murder and firearm violation, but convicted by jury of the lesser included offense of aggravated assault with a firearm. The appellate court affirmed the conviction but reversed the sentencing, finding the seven-year sentence exceeded statutory limits under Section 784.021.
The court affirmed the conviction because the defendant failed to timely object to the lesser-included offense charge when the trial court invited such objections, which constitutes waiver of error. However, the court reversed the sentencing and remanded for resentencing because the seven-year sentence exceeded the allowable penalty under Section 784.021 for aggravated assault with a firearm.
[1] A sentence imposed under an enhanced penalty statute is improper when the underlying offense already contains an enhanced penalty provision.
[2] A defendant may be estopped from asserting error on appeal regarding jury instructions if they fail to make a timely objection when given the opportunity.
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Join FLexlaw to unlock all legal intelligence“We agree that the element of fear which must be present in the crime of aggravated assault with a firearm is not contained in the information. Likewise, it was not proven by the evidence.”
Court's acknowledgment that aggravated assault was not properly charged and not proven
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Join FLexlaw to unlock all legal intelligenceCherry was charged with attempted first-degree murder and displaying or using a firearm in violation of Florida Statutes Section 790.07(2). Following …
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LILES, WOODIE A., Associate Judge (Retired).
Cherry was charged by information with attempted first degree murder, together with displaying or using a firearm in violation of Section 790.07(2), Florida Statutes (1977). He plead not guilty; and following a trial, the jury found him guilty of aggravated assault with a firearm. Motion for new trial was denied, and the judge sentenced him to seven years in prison with the requirement that he serve three years before being considered eligible for parole.
Cherry appeals to this Court and assigns six points for reversal and discharge. First, we note that the sentence of seven years is beyond the allowable penalty as set forth in Section 784.021, Florida Statutes. It has been determined that the enhanced penalty statute does not apply to the conviction of aggravated assault, since the offense of aggravated assault is an assault with a weapon and already an enhanced penalty statute. Williams v. State, 358 So. 2d 187 (Fla. 4th DCA 1978).
Appellant urges he was not charged with the crime for which he was convicted and aggravated assault with a firearm is not a lesser included offense of attempted first-degree murder.
We agree that the element of fear which must be present in the crime of aggravated assault with a firearm is not contained in the information. Likewise, it was not proven by the evidence.
However, the Court gave a charge on the lesser included offense to the jury, and the defense failed to make a timely objection. To the contrary, when the court invited comment and further recommended objections, the defense stood mute. It has been held in Odom v. State, 375 So. 2d 1079 (Fla. 1st DCA 1979) that unless objections are made in such an instance as is present here, it does not constitute fundamental error, and therefore the defendant is estopped to assert error on appeal. Similarly, in Blow v. State, 386 So. 2d 872 (Fla. 1st DCA 1980), Judge Booth, writing for the Court, held that in the absence of an objection by the defendant, the trial court properly charged on aggravated assault. Based upon the Odom and Blow cases, we must affirm the conviction. Appellee urges that this Court should follow Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978) and determine that the element of fear of harm was present in this case. In Kimbrough, there were five shots fired, unlike the present case. Here, only one shot was fired from a weapon that the victim did not see, and he was not even aware that he was in danger.
Therefore, Kimbrough is not controlling since there was no proof of the element of fear. We have reviewed the other points raised by Appellant and find them to be without merit.
For the above-mentioned reasons, the case is affirmed in part and remanded in part with directions to impose sentence pursuant to Section 784.021, Florida Statutes.
ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Courson v. State, 414 So. 2d 207 (Fla. 3d DCA 1982)…sault with a deadly weapon was not a lesser-included offense of attempted first-degree murder, and it was improper to instruct the jury thereon. Whether or not the instruction was proper under the circumstances of this case, compare Cherry v. State, 389 So. 2d 1201 (Fla. 1st DCA 1980), with Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978), the error, if any, in the giving of the instruction was not preserved for our review by appropriate objection below. At the beginning of the charge conference, the d…
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Hoover v. State, 511 So. 2d 629 (Fla. 1st DCA 1987)…improper charge or relied on that charge, as evidenced by his argument to the jury or took other affirmative action. Ray v. State, 403 So. 2d 956, 961 (Fla.1981); Caulder v. State, 500 So. 2d 1362 (Fla. 5th DCA 1986) (on rehearing); Cherry v. State, 389 So. 2d 1201 (Fla. 1st DCA 1980), review denied, 410 So. 2d 1337 (Fla.1981). Since in my judgment the error — given the posture of the case — cannot be considered fundamental, I cannot join the majority in holding that it is. [*638] In regard to the specific e…
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Cherry v. State, 410 So. 2d 1337 (Fla. 1981)…PER CURIAM. The petition for review Fla.App., 389 So. 2d 1201 is denied. See Ray v. State, 403 So. 2d 956 (Fla.1981). SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.…
Authorities Cited
- Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978)
- City OF Miami Beach v. Sargeant, 358 So. 2d 187 (Fla. 3d DCA 1978)
- Hollis Yates Odom v. State, 375 So. 2d 1079 (Fla. 1st DCA 1979)
- Brooks v. State, 386 So. 2d 872 (Fla. 1st DCA 1980)