SHELDON WILLIAMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that while convictions for attempted robbery with a firearm and unlawful possession of a firearm during the commission of a felony are affirmed, the sentence for the firearm possession conviction must be reversed on double jeopardy grounds.
The defendant was convicted by a jury of attempted robbery with a firearm and unlawful possession of a firearm during the commission of a felony. The …
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PER CURIAM.
The defendant Sheldon Williams appeals a judgment of conviction and concurrent prison sentences followed by probation, entered upon a jury verdict after trial, for the crimes of: (1) attempted robbery with a firearm [§§ 812.13(1), (2)(a), 777.04(1), (4)(b), Fla.Stat. (1979)]; and (2) unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm [§ 790.07(2), Fla.Stat. (1979)] in the Circuit Court for the Eleventh Judicial Circuit of Florida.
In our view, the crimes for which the defendant stands convicted and sentenced are precisely identical in essential elements; each count, in effect, states the same crime. Although the convictions for both crimes must be affirmed because the defendant failed to attack the information below through a motion to dismiss and/or elect, see e. g., Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980), and cases collected, the sentence imposed upon the firearm conviction — the less serious of the two crimes herein — must fall on double jeopardy grounds as a fundamental error which may be raised for the first time on appeal. See e. g., Davis v. State, 392 So. 2d 947 (Fla.3d DCA 1981), and cases collected. We find no merit, however, in the defendant’s remaining point on appeal. See Spencer v. State, 133 So. 2d 729, 731 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962).
The judgment of conviction and sentence for the crime of attempted robbery with a firearm is affirmed. The judgment of conviction for the crime of unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm, is affirmed; the sentence imposed for the crime of unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm, is reversed.
Affirmed in part; reversed in part.
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Damon v. State, 397 So. 2d 1224 (Fla. 3d DCA 1981)…hout substance. Ashley v. State, 265 So. 2d 685 (Fla.1972); Hamilton v. State, 356 So. 2d 30 (Fla.3d DCA 1978), cert. denied, 364 So. 2d 885 (Fla.1978). .The same is true of the subsequent cases which have followed Pinder. E. g., Williams v. State, 397 So. 2d 438 (Fla.3d DCA 1981) (attempted robbery with a firearm-possession of a firearm during commission of a felony); Thompson v. State, 397 So. 2d 354 (Fla.3d DCA 1981) (first degree felony murder-robbery); Monroe v. State, 396 So. 2d 241 (Fla.3d DCA 1981) (…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emmitt Monroe Spencer v. State, 133 So. 2d 729 (Fla. 1961)
- Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980)
- Litterio v. United States, 369 U.S. 880 (U.S. 1962)
- Tapia v. California, 369 U.S. 880 (U.S. 1962)
- Riddle v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)
- Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)