BUFORD LEE JENRETTE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jenrette appealed a trial court's denial of his motion to vacate one of two convictions arising from the same criminal conduct—aggravated battery with a firearm and possession of a firearm in the commission of a felony. The court held that under State v. Finder, when two offenses involve the same criminal acts, only the 'greater' charge may stand; because aggravated battery carries a mandatory minimum sentence while the possession charge does not, the battery conviction was properly retained. However, the court ordered that both the adjudication and sentence on the possession count be vacated.
Under State v. Finder, when two offenses involve the same criminal acts, only the conviction for the 'greater' charge may stand. Because aggravated battery carries a mandatory three-year minimum sentence under Fla. Stat. § 775.087(2) while the possession charge does not, aggravated battery is the greater offense and its conviction was properly retained. The trial court erred by not vacating both the adjudication and sentence on the possession charge, which the appellate court ordered set aside upon remand.
[1] A defendant may not be convicted of two or more offenses arising from the same criminal act; only the conviction for the greater charge may stand.
[2] When offenses have identical elements, the offense with the more severe sentencing consequences is considered the greater charge for purposes of vacating convictions.
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Join FLexlaw to unlock all legal intelligence“a defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only a conviction for the greater charge may stand.”
Statement of the Finder doctrine, the core legal principle governing the case.
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Join FLexlaw to unlock all legal intelligenceJenrette was convicted of aggravated battery committed with a firearm and possession of a firearm in the commission of the felony of aggravated batter…
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SCHWARTZ, Judge.
Pursuant to our decision affirming his convictions on the merits in Jenrette v. State, 373 So. 2d 718 (Fla. 3d DCA 1979), the defendant filed a motion under Fla.R. Crim.P. 3.850 alternatively seeking to vacate either the judgment and sentence for aggravated battery committed with a firearm, or the judgment and concurrent sentence on the separate charge of possession of a firearm in the commission of the aggravated battery. The trial judge set aside only the sentence on the possession charge and otherwise denied the motion. Jenrette has appealed, primarily arguing that the aggravated battery, instead of the possession, charge should have been vacated. We reject this contention.
Under the doctrine of State v. Finder, 375 So. 2d 836 (Fla.1979), a defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only a conviction for the greater charge may stand. Both aggravated battery, Sec. 784.045, Fla.Stat. (1979) and possession of a firearm in the commission of a felony, Sec. 790.07(2), Fla.Stat. (1979) are second degree felonies. However, under Sec. 775.087(2), Fla.Stat. (1979), only the aggravated battery, and not the possession charge requires a three-year minimum mandatory sentence. Because of the manifestly more severe sentencing consequences of aggravated battery,1 we conclude that it is the “greater” of the two crimes,2 and that the trial judge therefore properly declined to vacate that conviction.
The appellant’s fail-back position is that the adjudication, as well as the sentence, on the possession count should be set aside. On the authority of State v. Pinder, supra, and Hegstrom v. State, 388 So. 2d 1308 (Fla. 3d DCA 1980), we agree and order that this be done after remand.
Affirmed in part, reversed in part.
. In accordance with the statutory mandate, Jenrette was given eight years, subject to the three-year mandatory requirement, for aggravated battery; and a five-year concurrent sentence, with no condition, on the possession count.
. Insofar as their elements are concerned, the crimes of which Jenrette was found guilty, aggravated battery committed by shooting the victim with a firearm and the possession and use of a firearm in the commission of the felony of aggravated battery, are identical. Neither is, in the usual sense, a “lesser included offense” of the other.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)…Engel, we relegated a defendant to a Rule 3.850 proceeding where he sought our review of the lawfulness of dual sentences for (a) display of a firearm during the commission of an aggravated battery and (b) aggravated battery. See Jenrette v. State, 390 So. 2d 781 (Fla. 3d DCA 1980). . It does not appear that expediency was considered in Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980), where the court, having reviewed the several errors raised on appeal, refused to review a sentencing error on the basis t…1 / 2
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Damon v. State, 397 So. 2d 1224 (Fla. 3d DCA 1981)…tence due to use of firearm-aggravated assault); Hegstrom v. State, 388 So. 2d 1308 (Fla.3d DCA 1980) (first degree felony murder-robbery); Hillery v. State, 391 So. 2d 776 (Fla. 4th DCA 1980) (first degree felony murder-robbery); Jenrette v. State, 390 So. 2d 781 (Fla.3d DCA 1980) (aggravated battery committed with a firearm-possession of a firearm during commission of a felony); McRae v. State, 383 So. 2d 289 (Fla.2d DCA 1980) (first-degree felony burglary-sexual battery); State v. Kirkland, 384 So. 2d 1328…
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Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980)…ant carried a firearm, § 812.13(2)(a), Fla.Stat. (1979), and (b) possession and display of that firearm during the commission of that robbery, § 790.07, Fla.Stat. (1979), insofar as their elements are concerned, are identical, cf. Jenrette v. State, 390 So. 2d 781 (Fla. 3d DCA 1980) (holding that aggravated battery with a firearm and possession and use of a firearm in the commission of the felony of aggravated battery are identical), and will not support the imposition of separate sentences, Stevens v. State,…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- Hegstrom v. State, 388 So. 2d 1308 (Fla. 3d DCA 1980)
- State v. Hollie, 373 So. 2d 718 (Fla. 3d DCA 1979)