JOE HENRY SKIPPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joe Henry Skipper appealed his armed robbery conviction, challenging the denial of a pretrial lineup, the denial of penalty instructions, and the trial court's refusal to strike a juror who worked in law enforcement. The appellate court affirmed the conviction but reversed the sentencing to correct an illegal firearm enhancement penalty.
The court affirmed the conviction on all three jury-related challenges. However, the court agreed that the trial court erred in applying the Section 775.087 firearm enhancement to the armed robbery sentence, because Section 775.087 does not apply when the underlying offense already provides an enhanced penalty for firearm use.
[1] A trial court is not required to grant a motion for a court-ordered lineup prior to trial.
[2] A defendant's contention that the trial court erred in failing to instruct the jury on penalties is not preserved for appellate review if no objection is made in accordan…
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Join FLexlaw to unlock all legal intelligence“Section 775.087 does not apply to an offense which already provides an enhanced penalty for the use of a firearm, as does armed robbery under Section 812.13(2)(a), Florida Statutes (1979).”
Establishes the legal principle that firearm enhancements cannot be stacked when the base offense already includes a firearm enhancement provision.
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Join FLexlaw to unlock all legal intelligenceSkipper was convicted of armed robbery. During voir dire, a prospective juror disclosed he was a reserve police officer for Fernandina Beach and was a…
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PER CURIAM.
We affirm appellant’s conviction of the offense of armed robbery.
We find no basis for appellant’s contention that the trial court erred in failing to grant appellant’s motion for a court ordered line-up prior to commencement of the trial. Further, appellant’s contention that the trial court erred in failing to instruct the jury on penalties, Tascano v. State, 393 So. 2d 540 (Fla.1980), was not preserved for appellate review. Although the supplemental record establishes trial counsel’s request for and denial of penalty instructions by the court, the record contains no objection in accordance with Rule 3.390(d), Florida Rules of Criminal Procedure.
Accordingly, reversible error is not presented. Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981), Davenport v. State, 396 So. 2d 232 (Fla. 1st DCA 1981).
Appellant also contends that the court erred in denying his challenge of a juror for cause. On voir dire, the juror stated that he was attending school preparatory to going into work as a law enforcement officer, and was at the time a reserve police officer for Fernandina Beach. In response to questioning, he responded truthfully that since he was going into law enforcement work, although he didn’t believe that this would prejudice him as a juror, he honestly didn’t know whether it would or not.
However, he further stated, in answer to questions by the court, that he would not be more or less inclined to believe a person simply because he was a police officer; that he believed a police officer could be mistaken about what he sees; that there are circumstances under which even a police officer might bend the truth; and that he could gauge the testimony of each witness, law enforcement officer or not, just as any other witness, and'be guided by the instructions of the court.
We conclude, viewing the questions and answers in their entirety, that the juror’s admission of a mere “possibility” of some prejudice in favor of law enforcement reveals nothing more than an inclination toward law enforcement work and upholding of the law. In our view the trial judge, who observed the manner and demeanor of the juror, and heard his statements, could properly have determined that no disqualification of the juror was shown.
Section 913.03, Florida Statutes. Appellant has a heavy burden of showing an abuse of discretion. Williams v. State, 386 So. 2d 538 (Fla.1980); compare Leon v. State, 396 So. 2d 203 (Fla. 3rd DCA 1981).
Furthermore, appellant failed to state the ground for challenge as required by Rule 3.320, Florida Rules of Criminal Procedure.
Accordingly, we find no reversible error on this point.
Both appellant and appellee agree, however, that it was error for the trial court, in sentencing appellant for armed robbery, to enhance the penalty under the provisions of Section 775.087, Florida Statutes, for the use of a firearm. Section 775.087 does not apply to an offense which already provides an enhanced penalty for the use of a firearm, as does armed robbery under Section 812.13(2)(a), Florida Statutes (1979). Williams v. State, 358 So. 2d 187 (Fla. 4th DCA 1978); Knight v. State, 374 So. 2d 1065 (Fla. 3rd DCA 1979).
The judgment of conviction is affirmed, with directions to the trial court that the sentence imposed be corrected in accordance with this opinion.
ERYIN, SMITH, LARRY G. and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Norwin Guzman v. State, 934 So. 2d 11 (Fla. 3d DCA 2006)…e Williams, 465 So. 2d at 1231. Viewing the voir dire questions and answers in their entirety, we conclude that Thies’ statements “reveal[] nothing more than an inclination toward law enforcement work and.upholding of the law.” See Skipper v. State, 400 So. 2d 797, 798 (Fla. 1st DCA 1981), rev’d on other grounds, 420 So. 2d 877 (Fla.1982); see also Peri v. State, 412 So. 2d 367 (Fla. 3d DCA 1981)(holding that the trial court acted within its discretion in refusing a cause challenge against a prospective juror…
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Skipper v. State, 420 So. 2d 877 (Fla. 1982)…ADKINS, Justice. We have for review a decision by the District Court of Appeal, First District (Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981)), which expressly and directly conflicts with a decision of another district court of appeal or of this Court on the same question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. [*878] Petitioner, Joe Henry Skipper,…
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Vause v. State, 424 So. 2d 52 (Fla. 1st DCA 1982)…rial court to impose a three year mandatory minimum sentence notwithstanding that the firearm was an element of the committed offense. The distinction between subsections (1) and (2) of section 775.087 was not argued in the case of Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981), rev’d. on other grounds, 420 So. 2d 877 (Fla.1982). To the extent that Skipper is inconsistent with Blanton and this opinion, we hereby recede from Skipper. Appellant Vause has cited Webb v. State, 410 So. 2d 944, 945 (Fla. 1st…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Leon v. State, 396 So. 2d 203 (Fla. 3d DCA 1981)
- Williams v. State, 386 So. 2d 538 (Fla. 1980)
- City OF Miami Beach v. Sargeant, 358 So. 2d 187 (Fla. 3d DCA 1978)
- Washington v. State, 392 So. 2d 599 (Fla. 1st DCA 1981)
- Gans v. Tarlton, 374 So. 2d 1065 (Fla. 3d DCA 1979)
- Stanford Legray Knight v. State, 374 So. 2d 1065 (Fla. 3d DCA 1979)
- Davenport v. State, 396 So. 2d 232 (Fla. 1st DCA 1981)