RAYMOND HILLERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Hillery was convicted of first-degree murder, robbery with a firearm, and possession of a short-barreled shotgun. The appellate court affirmed the murder and gun possession convictions but reversed the robbery conviction, holding that a defendant cannot be convicted and punished for both felony murder and the underlying felony when the murder charge is based on the felony murder rule.
A defendant may not be convicted and punished for both felony murder and the underlying felony when premeditated murder is charged but the only evidence supporting the murder conviction comes from proof of one of the enumerated felonies. Therefore, Hillery's conviction for robbery with a firearm must be vacated, while his convictions for first-degree murder and possession of a short-barreled shotgun are affirmed.
[1] A defendant may not be convicted and punished for both felony murder and the underlying felony when the only evidence to sustain the murder conviction is proof that the k…
[2] A prosecutor's statement during closing argument can effectively waive a theory of premeditated murder.
Previewing 2 of 4 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“We did not intend to prove premeditated murder in this case. If we were required to prove premeditated murder, then we wouldn't have even gotten this far with the case.”
Prosecutor's statement during closing argument effectively waiving the premeditated murder theory and electing to proceed on felony murder.
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Join FLexlaw to unlock all legal intelligenceAppellant Hillery was indicted for premeditated murder, robbery with a firearm, and possession of a short-barreled shotgun. At trial, the jury found h…
The full statement of facts, procedural history, and disposition for this case are member content.
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HURLEY, Judge.
Appellant, Raymond Hillery, was indicted for premeditated murder, robbery with a firearm and possession of a short barrelled shotgun. After trial, the jury found 'him guilty as charged.1 The trial court adjudged appellant guilty on all counts and sentenced him to life imprisonment for first-degree murder, and fifteen years for possession of a short barrelled shotgun, the sentences to run consecutively. The court withheld sentence on the charge of robbery with a firearm. On appeal, appellant questions the propriety of being adjudged guilty of both first-degree murder and robbery with a firearm. Under the facts of the case, we hold that the dual convictions are improper. While some of the evidence at trial would support a finding of premeditation, the prosecutor made the following statements during closing argument:
We did not intend to prove premeditated murder in this case. If we were required to prove premeditated murder, then we wouldn’t have even gotten this far with the case. You would not even be considering the case at this point.
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The premeditated murder, we’d have to have shown that this man went into that store intending to kill William Widland. The proof has not been that he went into that store intending to kill William Wid-land. We have not proved premeditated murder. We are dealing with the other part of first degree murder, felony murder. By these remarks, the state effectively waived the theory of premeditated first-degree murder. Nonetheless, it has long been held that the state may proceed on a theory of felony murder even though the indictment is framed in terms of premeditated murder. Knight v. State, 338 So. 2d 201 (Fla.1976). This is what the state elected to do in the case at bar. That decision, however carries with it a significant limitation.
In State v. Pinder, 375 So. 2d 836, 839 (Fla.1979), the court announced this rule:
. . . [WJhere premeditated murder is charged, but the only evidence to sustain the murder conviction is furnished by proof that the killing occurred as the result of one of the felonies enumerated in section 782.04(1), we hold that the defendant may not be convicted and punished for both the felony murder and the underlying felony.
Applying Pinder to the case at bar, we hold that appellant’s conviction for robbery with a firearm cannot stand. Since we find that appellant’s other points on appeal lack merit, we further hold that the convictions for first-degree murder and possession of a short barrelled shotgun should be affirmed. Therefore the cause is remanded to the trial court with instructions to vacate appellant’s conviction for robbery with a firearm.
AFFIRMED IN PART and REMANDED WITH INSTRUCTIONS.
ANSTEAD, J., and WARREN, LAMAR, Associate Judge, concur. . Though the indictment charged premeditated murder, the verdict form reflected a finding of “guilty of first degree murder.” We regard the variance as a distinction without a difference.
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Damon v. State, 397 So. 2d 1224 (Fla. 3d DCA 1981)…Harper v. State, 386 So. 2d 808 (Fla. 1st DCA 1980) (enhancement of third-degree murder sentence 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…
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Alcides Castro v. State, 472 So. 2d 796 (Fla. 3d DCA 1985)…mpted first-degree murder conviction rests on evidence of an attempted felony murder without proof of premeditation, a defendant may not be convicted and sentenced for both the attempted felony murder and the underlying felony. See Hillery v. State, 391 So. 2d 776, 777 (Fla. 4th DCA 1980); Harkins v. State, 380 So. 2d 524, 528 (Fla. 5th DCA 1980). Defendant requested a jury trial which was granted except as to the finding of premeditation, a finding necessary to a separate conviction and sentence for both t…
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Saleh v. State, 399 So. 2d 513 (Fla. 4th DCA 1981)…and sentence for robbery with a firearm are affirmed. Appellant’s judgments of conviction of possession of a firearm while engaged in a criminal offense are reversed and vacated. See, State v. Pinder, 375 So. 2d 836 (Fla. 1979); Hillery v. State, 391 So. 2d 776 (Fla. 4th DCA 1980). DOWNEY and MOORE, JJ., and ROSEMARY BARKETT, Associate Judge, concur.…
Previewing 3 of 5 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)
- Knight v. State, 338 So. 2d 201 (Fla. 1976)