MICHAEL DAVIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Michael Davis challenges his sentences imposed after a guilty plea to robbery, firearm possession, and kidnapping. The appellate court holds that robbery with a firearm and separate possession/display of that firearm are identical crimes that cannot support multiple sentences, and reverses the sentence on the firearm possession count while affirming the robbery and kidnapping sentences.
The court held that: (1) robbery with a firearm and possession/display of a firearm during that robbery are identical crimes in their elements and cannot support separate sentences; (2) the mandatory minimum sentencing provision applies to the robbery count, not the possession count; and (3) separate consecutive sentencing on the kidnapping charge is permissible as a separate criminal episode.
[1] Separate sentences cannot be imposed for robbery during which a firearm was carried and for possession and display of that firearm during the commission of the robbery, a…
[2] A guilty plea to a charge does not waive a claim that the sentence imposed for that charge is illegal.
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Join FLexlaw to unlock all legal intelligence“the crimes of (a) robbery during the course of which the defendant 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...and will not support the imposition of separate sentences”
Establishes the core holding that identical statutory elements prevent multiple sentences for related firearm offenses
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Join FLexlaw to unlock all legal intelligenceOn August 19, 1977, Davis committed robbery while carrying a firearm. He was charged with three counts: robbery with a firearm (Count I), unlawful pos…
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DANIEL S. PEARSON, Judge.
The appellant seeks review of the summary denial of his motion under Florida Rule of Criminal Procedure 3.850 to vacate the sentences imposed upon a judgment against him after a guilty plea to offenses committed on August 19, 1977. Count I of the information, upon which Davis was sentenced to a prison term of seven and one-half years, charged the commission of robbery, during the course of which Davis carried a firearm. Count II, upon which the trial court imposed a concurrent term of seven and one-half years, charged that Davis unlawfully possessed and displayed a firearm during the commission of such robbery. Count IY, upon which Davis was sentenced to a term of seven and one-half years to run consecutively to the sentences imposed on Counts I and II, charged kidnapping.1
We reverse the order of the trial court denying Davis’ motion to set aside the prison sentence imposed on Count II2 upon a holding (1) the crimes of (a) robbery during the course of which the defendant 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, 372 So. 2d 1370 (Fla.1979); Gonzalez v. State, 367 So. 2d 1008 (Fla.1979); Johnson v. State, 366 So. 2d 418 (Fla.1978); Cone v. State, 285 So. 2d 12 (Fla.1973); Barner v. State, 390 So. 2d 468 (Fla. 3d DCA 1980); Cremade v. State, 367 So. 2d 236 (Fla. 3d DCA 1979); (2) because the three-year minimum mandatory sentencing provisions of § 775.087(2)(a), Fla.Stat. (1979), are applicable to the robbery, not the possession count, Davis is entitled only to the vacation of the sentence on the possession count, Jenrette v. State, supra; (3) Davis’ contention that he could not be separately and consecutively sentenced on the kidnapping charge, an offense he says arose out of the same criminal episode as the robbery, is without merit, § 775.021(4), Fla.Stat. (1979); see State v. Ray, 331 So. 2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975); Estevez v. State, 313 So. 2d 692 (Fla.1975), and this result is not altered by the fact that a consecutive three-year mandatory minimum sentence attached to the kidnapping count, see Vann v. State, 366 So. 2d 1241 (Fla. 3d DCA 1979).
Affirmed in part; reversed in part.
. Count III, charging grand larceny, was dismissed.
. Davis’ plea of guilty to the offense of possession and display of a firearm waives any claim of double jeopardy, Robinson v. State, 239 So. 2d 282 (Fla. 2d DCA 1970); Peel v. State, 150 So. 2d 281 (Fla.1963), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1963). Were the claim not waived, he would be entitled to have the judgment of conviction on Count II set aside. See State v. Pinder, 375 So. 2d 836 (Fla.1979); Jenrette v. State, 390 So. 2d 781 (Fla. 3d DCA 1980); Hegstrom v. State, 388 So. 2d 1308 (Fla. 3d DCA 1980). The guilty plea, however, is not an impediment to Davis’ attack on the sentence. Robinson v. State, 373 So. 2d 898 (Fla.1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Gregorio Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d DCA 1982)…248 So. 2d 172 (Fla.1971). The defense of former jeopardy can be waived. Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963), appeal dismissed, 168 So. 2d 147 (Fla.1964), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965); Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980). A court’s subject matter jurisdiction is unaffected by acts which may be illegal, i.e., the imposition of a sentence which violates the constitutional proscription against twice being placed in jeopardy, United States v. Benz, 28…1 / 2
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Claro E. Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA 1990)…claim of double jeopardy with respect to the convictions involved. Anderson v. State, 392 So. 2d 328 (Fla. 3d DCA 1981); see Hines v. State, 401 So. 2d 878 (Fla. 3d DCA 1981); Taylor v. State, 401 So. 2d 877, 878 (Fla. 3d DCA 1981); Davis v. State, 392 So. 2d 947, 949 n. 2 (Fla. 3d DCA 1980); see also Peel v. State, 150 So. 2d 281, 297 (Fla. 2d DCA 1963), appeal dismissed, 168 So. 2d 147 (Fla.1964), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). Our court has held, however, that a nolo con…
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Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992)…al or multiple sentences which are also precluded by the Cleveland rule. Guardado, 562 So. 2d at 696; Taylor v. State, 401 So. 2d 877 (Fla. 3d DCA 1981); Hines v. State, 401 So. 2d 878 (Fla. 3d DCA 1981); Anderson, 392 So. 2d at 328; Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980). While this observation is correct, the cases cited do not involve2 and therefore do not apply to the present situation, in which the defendant agreed not only to plead to the offenses themselves, but also to the imposi [*728] tio…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (19 total)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)
- Jenkins v. Louie L. Wainwright, 322 So. 2d 477 (Fla. 1975)
- Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963)
- Johnson v. State, 366 So. 2d 418 (Fla. 1978)
- Brown v. State, 367 So. 2d 1008 (Fla. 1979)
- Hegstrom v. State, 388 So. 2d 1308 (Fla. 3d DCA 1980)