ROBERT A. PRESTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Robert Preston appealed his convictions for attempted criminal mischief and throwing a deadly missile into an occupied vehicle, arguing the trial court erred in denying a self-defense instruction and that one offense was a lesser included offense of the other. The Florida Fifth District Court of Appeal affirmed, finding the self-defense issue was not preserved for appeal and that the two crimes require proof of distinct elements under the Blockburger test.
The court held that the self-defense instruction issue was not preserved for appeal because Preston failed to object at trial as required by Florida Rules of Criminal Procedure 3.390(d), and that the two crimes are distinct offenses under the Blockburger test because each requires proof of an element the other does not.
[1] An appellate court will not consider an issue on appeal if the trial court record does not show an objection was made to preserve the issue.
[2] The Blockburger test determines whether two offenses are distinct for double jeopardy purposes by examining whether each statutory provision requires proof of a fact that…
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“Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
Establishes the Blockburger test as the controlling legal standard for determining whether two crimes constitute the same offense for double jeopardy purposes.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePreston was charged with attempted criminal mischief and throwing a deadly missile into an occupied vehicle. He requested a jury instruction on self-d…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Lesser Included Offense cases and more on FLexlaw
ORFINGER, Judge.
Appellant’s request for a jury instruction on self defense was denied, and appellant claims error. He also contends that he could not be convicted of attempted criminal mischief1 and throwing a deadly missile into an occupied vehicle 2 arising out of the same facts, because the lesser is included in the greater.3 We affirm.
We fail to find in the record any objection to the trial court’s refusal to give the requested instruction, as required by Florida Rules of Criminal Procedure, 3.390(d). When no objection is made, the issue is not preserved for appeal. Bassett v. State, 392 So. 2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980).
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The test emphasizes the elements of the two crimes: if each requires proof of a fact that the other does not, the Bloekbur-ger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. Iannelli v. United States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975). Thus, in Ziegler v. State, 385 So. 2d 1168 (Fla. 1st DCA 1980), where the appellant argued that he could not be simultaneously convicted and sentenced of possession of a short-barreled shotgun and possession of a firearm by a previously convicted felon, it was held that neither offense could be considered as lesser included in the other for the purposes of section 775.021(4), since on each count the State was required to allege and prove an element not necessary for the conviction of the other count: in respect to the first count, that the shotgun was short-barreled, and in respect to the second count, that appellant was a convicted felon.
Appellant agrees with the State’s position that the crime of criminal mischief requires proof of damage to property and the crime of throwing a deadly missile requires proof that the missile thrown is capable of producing death or great bodily harm, each an element not required in the other, so the crimes are not the same for double jeopardy purposes. Appellant says, however, that he was convicted only of attempted criminal mischief, so no element of damage to property is present. An attempt to commit a crime has been defined as an overt act done with the intent to commit the crime and which, except for the interference of some cause preventing the carrying out of that intent, would have resulted in the commission of the crime. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); 14- Fla.Jur.2d, Criminal Law, § 44. Therefore, attempted criminal mischief involves a finding of intent, not carried out, to cause damage to property. The crimes are not the same and there is no error on this point.
Appellant having failed to demonstrate error, the judgment and sentence are AFFIRMED. .
COBB and SHARP, JJ., concur. . § 806.13, Fla.Stat. (1979).
. § 790.19, Fla.Stat. (1979).
. § 775.021(4), Fla.Stat. (1979), says:
Whoever, in the course of one criminal transaction or episode, commits an act or acts consti-tilting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal episode, excluding lesser included offenses. . . . (emphasis added).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
-
Bell v. State, 437 So. 2d 1057 (Fla. 1983)…l events. If the prosecution is based on a different statutory offense from, but the same factual event as, that resolved in a prior, or another prosecution, double jeopardy does not bar the proposed prosecution or punishment. See Preston v. State, 397 So. 2d 712 (Fla. 5th DCA 1981). The latter principle was involved in Missouri v. Hunter, - U.S. -, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Defendant Hunter was convicted of first-degree robbery and armed criminal action. The separate statutes did not contain th…
-
Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…this secondary analysis of the “factual offense” that it can correctly be said that two (factual) offenses are “the same” unless each requires proof of a fact that the other does not. See text, section 8, infra. . For example, see Preston v. State, 397 So. 2d 712 (Fla. 5th DCA 1981) which correctly disregards the fact that both of two offenses arose out of the same facts, compared the elements of each, found that each offense had “an element not required in the other” and upheld convictions of both. See also…
-
Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…. State, 411 So. 2d 319 (Fla. 5th DCA 1982)), the dissent in Baker v. State, 431 So. 2d 263 (Fla. 5th DCA 1983), the dissent in Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982), Bartee v. State, 401 So. 2d 890 (Fla. 5th DCA 1981); Preston v. State, 397 So. 2d 712 (Fla. 5th DCA 1981), and Ziegler v. State, 385 So. 2d 1168 (Fla. 1st DCA 1980), rev. den. 392 So. 2d 1381 (Fla.1980). . See Judge Baskin and Judge Hubbart dissenting in Taylor v. State, 436 So. 2d 124 (Fla. 3d DCA 1983) and Judge Nesbitt and Judge…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Iannelli v. United States, 420 U.S. 770 (U.S. 1975)
- Gustine v. State, 86 Fla. 24 (Fla. 1923)
- Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980)
- Ziegler v. State, 385 So. 2d 1168 (Fla. 1st DCA 1980)
- Theordore Agustus Bassett v. State, 392 So. 2d 1025 (Fla. 5th DCA 1981)