THE STATE OF FLORIDA, APPELLANT,
v.
EUGENE PITTS, APPELLEE
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The State appealed an order arresting a defendant's conviction on a possession of firearm charge, arguing the jury verdicts were not legally inconsistent. The Third District Court of Appeal reversed, holding that acquittal on aggravated battery and conviction on possession while committing a felony are not inconsistent when the jury was not instructed on attempted aggravated battery.
The verdicts are not inconsistent. Because the jury was not instructed on attempted aggravated battery in Count I but was instructed in Count II that it could find guilt if the defendant attempted to commit a felony (using the firearm), the acquittal on the aggravated battery charge does not logically preclude conviction on the possession charge.
[1] A jury's acquittal on a primary offense does not necessarily preclude a conviction on a related offense, even if the latter requires the commission of the former, where t…
[2] A judgment of conviction may be arrested when jury verdicts are found to be inconsistent.
Previewing 2 of 3 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“It is a crime for any person to display, use, threaten or attempt to use a firearm while committing or attempting to commit a felony.”
The statutory instruction given to the jury on Count II, which allowed conviction based on attempt, distinguishing it from Count I which did not include an attempt instruction.
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with aggravated battery with a firearm (Count I) and possession of a firearm while engaged in a criminal offense (Count II).…
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NESBITT, Judge.
The state appeals an order arresting defendant’s judgment of conviction as authorized by Florida Rule of Appellate Procedure 9.140(c)(1)(D). We reverse.
The defendant was charged in a two-count information with aggravated battery with a firearm and possession of a firearm while engaged in a criminal offense, the aggravated battery. The jury was charged as to Count I on the offense as alleged. No lesser included offenses were requested or charged.1 As to Count II, the court instructed the jury in accordance with the terms of the statute: “It is a crime for any person to display, use, threaten or attempt to use a firearm while committing or attempting to commit a felony.” [emphasis supplied]. The jury acquitted the defendant on Count I, the aggravated battery, but convicted him on the possession charge. The court then arrested the judgment of conviction on the possession charge finding that the verdicts were inconsistent. As in the very similar case of McCray v. State, 397 So. 2d 1229 (Fla. 3d DCA 1981), the defendant relies upon Mahaun v. State, 377 So. 2d 1158 (Fla.1979) to support the arrest of judgment. The state argues that the verdicts are not inconsistent because the jury was not instructed in Count I on attempted aggravated battery but was instructed in Count II that it could find the defendant guilty if he used a firearm while committing or attempting to commit a felony. The case of McCray v. State, supra, is dispositive of the issue presented here and, for the reasons and authorities discussed by Judge Schwartz in that opinion, we reverse the order arresting defendant’s judgment and conviction on Count II of the information and remand the cause to the trial court for, entry of a proper judgment and for sentencing.
Reversed and remanded.
. Both sides specifically waived instruction on lesser included offenses.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Murrell Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982)…ind “attempt to use” a firearm during the commission of a felony, as instructed, in Counts I and II is not legally inconsistent with its finding of “possession” of a firearm during the commission of a felony in Counts III and IV. See Pitts v. State, 400 So. 2d 549 (Fla. 3d DCA 1981), review granted, (FIa.1982); McCray v. State, 397 So. 2d 1229 (Fla. 3d DCA), review granted, (Fla.1981). . Had the jury found the defendant guilty of using a weapon in Counts I and II, then we would have been required to vacate t…
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Pitts v. State, 425 So. 2d 542 (Fla. 1983)…ADKINS, Justice. Eugene Pitts, the petitioner (hereinafter referred to as defendant), in this case, seeks review and reversal of the decision of the Third District Court of Appeal in State v. Pitts, 400 So. 2d 549 (Fla. 3d DCA 1981). Conflict is alleged between Pitts and the cases of Mahaun v. State, 377 So. 2d 1158 (Fla.1979), and Redondo v. State, 403 So. 2d 954 (Fla.1981). We have jurisdiction. Article V, § 3(b)(3), Fla.Const. The facts surrounding the in…
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State v. Davis, 411 So. 2d 1354 (Fla. 3d DCA 1982)…nt of the crimes of second-degree murder and manslaughter, the only offenses upon which, under the court’s instructions, it could have returned a verdict on Count One.1 Under such circumstances, the conviction on Count Two may stand. State v. Pitts, 400 So. 2d 549 (Fla. 3d DCA 1981), [*1356] review granted (Fla.1982); McCray v. State, 397 So. 2d 1229 (Fla. 3d DCA), review granted (Fla.1981).2 Compare Wooten v. State, 404 So. 2d 1072 (Fla. 3d DCA 1981); Palacio v. State, 402 So. 2d 500 (Fla. 3d DCA 1981). But…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)
- McCRAY v. State, 397 So. 2d 1229 (Fla. 3d DCA 1981)