STEVEN WILLIAM GOSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be convicted of both felony murder and the underlying felony, nor of both premeditated murder and felony murder when only one homicide occurred.
Appellant was convicted of first-degree murder, felony murder, sexual battery, and kidnapping. He appealed the kidnapping conviction and the denial of…
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ORFINGER, Judge.
Appellant was charged with and convicted of first degree murder, felony murder, sexual battery and kidnapping of the deceased female. He appeals, contending that the court erred in sustaining the kidnapping conviction and in refusing to grant a continuance when an out of state expert medical witness declined to appear and testify on his behalf.
Appellant fails to demonstrate an abuse of the court’s discretion in denying the continuance. Andrews v. State, 134 Fla. 450, 184 So. 88 (1938); Holman v. State, 347 So. 2d 832 (Fla.3d DCA 1977), cert. denied 354 So. 2d 981 (1978). Thus there is no error shown as to that issue.
We agree with appellant that there is insufficient evidence to sustain the kidnapping conviction, so the conviction on Count 5 of the information, kidnapping, is reversed and the sentence on that count is set aside.
Sua sponte, we find fundamental error in the conviction for the felony murder count, which issue we address notwithstanding appellant’s failure to raise it either in the trial court or on appeal.1
Appellant’s conviction on the felony murder count arose out of the finding of the underlying felony of sexual battery. A defendant cannot be convicted of both felony murder and the underlying felony which serves as the basis for the felony murder count. State v. Pinder, 375 So. 2d 836 (Fla. 1979). Additionally, since there was only one homicide here, there could only be one murder conviction, so appellant could not be convicted of both premeditated murder and felony murder. Muszynski v. State, 392 So. 2d 63 (Fla. 5th DCA 1981).
We therefore affirm the convictions and sentences for premeditated murder and sexual battery, and reverse the convictions and vacate the sentences on the kidnapping and felony murder counts.
AFFIRMED in part, REVERSED in part.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. . Sanford v. Rubin, 237 So. 2d 134 (Fla.1970); Muszynski v. State, 392 So. 2d 63 (Fla. 5th DCA 1981).
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Bryon Gordon v. State, 780 So. 2d 17 (Fla. 2001)…micide did not occur as a result of Gordon’s criminal actions. In a similar argument, Gordon highlights the principle that convictions for both premeditated murder and felony murder are impermissible when only one death occurred. See Goss v. State, 398 So. 2d 998, 999 (Fla. 5th DCA 1981). We have held repeatedly that section 775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides. See Goodwin v. State, 634 So. 2d at 157-58 (Grimes, J. concurring) (“I believe that th…
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Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)…o other district courts of appeal.5 However this court has also held to the contrary by treating the violation of double jeopardy rights as fundamental error and granting relief when the issue was first presented on direct appeal. See Goss v. State, 398 So. 2d 998 (Fla. 5th DCA 1981); Muszynski v. State, 392 So. 2d 63 (Fla. 5th DCA 1981). See also Vela v. State, 450 So. 2d 305 (Fla. 5th DCA 1984). See also McGee v. State, 438 So. 2d 127 (Fla. 1st DCA 1983) (dictum). The First District Court of Appeal, in Solo…1 / 2
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Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987)…ate, 380 So. 2d 1299 (Fla. 4th DCA), rev. denied, 389 So. 2d 1116 (Fla.1980); Dorman v. State, 492 So. 2d 1160 (Fla. 1st DCA 1986); Vela v. State, 450 So. 2d 305 (Fla. 5th DCA 1984); Barber v. State, 413 So. 2d 482 (Fla. 2d DCA 1982); Goss v. State, 398 So. 2d 998 (Fla. 5th DCA 1981); Muszynski v. State, 392 So. 2d 63 (Fla. 5th DCA 1981). There is no need in this case to engage in an extensive discussion of double jeopardy and the applicability of the test in Blockburger v. United States, 284 U.S. 299, 52 S.C…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- Bennett Cooper v. State, 392 So. 2d 63 (Fla. 5th DCA 1981)
- Holman v. State, 347 So. 2d 832 (Fla. 3d DCA 1977)
- Hamp Andrews v. State, 134 Fla. 450 (Fla. 1938)