ALVARO PALACIO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Palacio was convicted of improper exhibition of a firearm (a misdemeanor) and unlawful possession of a firearm while engaged in commission of felonies, but acquitted of the underlying felonies. The court reversed the firearm possession conviction because Florida law requires a conviction on an underlying felony for the possession charge to stand.
A conviction for unlawful possession of a firearm while engaged in commission of a felony cannot stand when the defendant has been acquitted of the underlying felonies. The conviction for improper exhibition of a firearm (misdemeanor) is affirmed, but the firearm possession conviction must be reversed.
[1] A conviction for unlawful possession of a firearm while engaged in the commission of a felony cannot stand when the defendant is acquitted of the underlying felony.
[2] A jury's finding of guilt on a lesser included misdemeanor offense does not support a conviction for a felony offense that requires the commission of an underlying felony…
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Join FLexlaw to unlock all legal intelligence“We are compelled by Mahaun v. State, 377 So. 2d 1158 (Fla.1979), to set aside this unlawful possession conviction.”
Establishes the controlling precedent requiring reversal of the firearm possession conviction
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Join FLexlaw to unlock all legal intelligencePalacio was charged with shooting at an unoccupied vehicle, attempted first-degree murder with a firearm, and unlawful possession of a firearm while e…
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DANIEL S. PEARSON, Judge.
Palacio was charged with three felonies: (1) shooting at an unoccupied vehicle, in violation of Section 790.19, Florida Statutes (1977); (2) attempted first degree murder with a firearm, in violation of Sections 782.-04 and 777.04(1), Florida Statutes (1977); and (3) unlawful possession of a firearm while engaged in the commission of the aforesaid felonies, in violation of Section .790.07(2), Florida Statutes (1977). The jury found Palacio not guilty of shooting at an occupied vehicle and, instructed that improper exhibition of a firearm, a first degree misdemeanor under Section 790.10, Florida Statutes (1977), was a lesser offense of the attempted first degree murder charge, it found Palacio guilty of this misdemeanor, thereby effectively finding him not guilty of attempted murder. But de spite the absence of a finding of guilt on either of the underlying felonies, the jury found Palacio guilty of the crime of unlawful possession of a firearm while engaged in the commission of these felonies.
We are compelled by Mahaun v. State, 377 So. 2d 1158 (Fla.1979),1 to set aside this unlawful possession conviction.2 See Wooten v. State, 404 So. 2d 1072 (Fla. 3d DCA 1981). Our reversal on this count means that Palacio stands convicted of a misdemeanor only, rendering moot his dubious arguments that he was wrongfully denied classification as a youthful offender and wrongfully sentenced for both offenses. As to Palacio’s remaining points on appeal, which concern evidentiary matters, we find the asserted errors (the most serious of which is exclusively relevant to the reversed count) to be harmless in light of our disposition of this case.
The defendant’s conviction for improper exhibition of a firearm is affirmed; the defendant’s conviction for unlawful possession of a firearm while engaged in the commission of a felony is reversed.
Affirmed in part; reversed in part.
. Any doubt about the continued vitality of Mahaun as applied to the present case was set at rest in State v. Redondo, 403 So. 2d 954 (Fla.1981).
. We have examined the record to determine whether our decision in McCray v. State, 397 So. 2d 1229 (Fla.3d DCA 1981), can sustain this conviction. We find McCray inapplicable, because Palacio’s jury, like McCray’s, instructed that the defendant could be found guilty of possession of a firearm while “committing or attempting to commit” the charged felonies, unlike McCray’s, was also instructed that it could find Palacio guilty of the lesser included offense of attempted shooting at an occupied vehicle, a third degree felony, for which offense the jury acquitted Palacio. We cannot, as we did in McCray, rationalize the inconsistency of the verdicts.
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Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983)…ndividual on interlocking charges. In Thomas v. State, 430 So. 2d 616 (Fla. 4th DCA 1983), this court followed Redondo in an identical situation, as did the Third District in Wooten v. State, 404 So. 2d 1072 (Fla. 3d DCA 1981) and Palacio v. State, 402 So. 2d 500 (Fla. 3d DCA 1981). In Ayrado v. State, 431 So. 2d 320 (Fla. 3d DCA 1983), the court reversed a conviction for the use of a firearm during a felony because the jury found Ayrado not guilty by reason of insanity of charges of first degree murder and…
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Sobel v. State, 410 So. 2d 556 (Fla. 4th DCA 1982)…ntences on the authority of Potts v. State, 403 So. 2d 443 (Fla. 2d DCA 1981) and de [*557] cline to follow Turner v. State, 369 So. 2d 670 (Fla. 1st DCA 1979), relied upon by appellant. Redondo v. State, 403 So. 2d 954 (Fla.1981), Palacio v. State, 402 So. 2d 500 (Fla. 3d DCA 1981) and Mahaun v. State, 377 So. 2d 1158 (Fla.1979), also cited by appellant, are inapposite, as each involves a principle of law unrelated to appellant’s status as a principal in the first degree under section 777.011 Fla.Stat. (1977…
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State v. Davis, 411 So. 2d 1354 (Fla. 3d DCA 1982)…y 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 finding that the conviction for unlawful possession and display of a firearm survives this challenge does not solve the problem of the new trial. That trial should be for unlawful possession of a firearm while committing the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Redondo v. State, 403 So. 2d 954 (Fla. 1981)
- 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)
- Wooten v. State, 404 So. 2d 1072 (Fla. 3d DCA 1981)