JULIAN L. GIBSON A/K/A HARRY J. GRANT AND ALFRED J. GIBSON, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellants Gibson and Grant appealed their convictions for robbery with a firearm and possession of a firearm while engaged in a criminal offense, raising double jeopardy, jury instruction, and prosecutorial misconduct claims. The court affirmed the robbery conviction but reversed the firearm possession conviction, finding that the two offenses involved the same criminal act in violation of double jeopardy principles.
The court held that the convictions for both robbery with a firearm and possession of a firearm violate double jeopardy principles because the two offenses involve the same criminal act as a necessary element, and only the conviction for the greater charge (robbery) may stand. The court also held that the omission of specific intent from the standard robbery instruction was not fundamental error absent a real dispute on that question, and that the prosecutor's statements constituted permissible comment on the uncontradicted nature of the evidence.
[1] A defendant may not be convicted of two or more offenses which involve the same criminal acts; only a conviction for the greater charge may stand.
[2] Convictions and sentences for possession of a firearm while engaged in a criminal offense are improper when based on the same criminal act as an armed robbery conviction.
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Join FLexlaw to unlock all legal intelligence“A defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only a conviction for the greater charge may stand.”
Establishes the double jeopardy principle that prohibits multiple convictions for offenses arising from the same criminal act.
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Join FLexlaw to unlock all legal intelligenceAppellants Julian L. Gibson and Alfred J. Gibson were tried by jury and found guilty of robbery with a firearm and possession of a firearm while engag…
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FERGUSON, Judge.
Pursuant to trial by jury, appellants were found guilty of robbery with a firearm and possession of a firearm while engaged in a criminal offense. They were sentenced to consecutive terms of imprisonment. By this appeal they raise three issues for review:
(1) the adjudication and sentence for robbery with a firearm and possession of a firearm while engaged in a criminal offense constitutes a double jeopardy violation;
(2) failure to instruct the jury as to the essential element of intent to commit the crime charged was fundamental error; and (3) the prosecutor’s statements in closing argument constituted an impermissible comment on appellant’s failure to testify.
A defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only a conviction for the greater charge may stand. State v. Pinder, 375 So. 2d 836 (Fla.1979); Jenrette v. State, 390 So. 2d 781 (Fla. 3d DCA 1980). Since the two offenses for which defendants stand convicted, armed robbery under Section 812.13, Florida Statutes (1977) and possession and display of a firearm under Section 790.07, Florida Statutes (1977), involve the same criminal act as a necessary element of each offense, the defendants’ convictions and sentences for possession of a firearm may not stand. James v. State, 399 So. 2d 424 (Fla. 5th DCA 1981); Lee v. State, 400 So. 2d 1238 (Fla. 1st DCA 1981); Monroe v. State, 396 So. 2d 241 (Fla. 3d DCA 1981). Cf. Wooten v. State, 404 So. 2d 1072 (Fla. 3d DCA 1981) (convic tion of petty larceny inconsistent with finding violation of § 790.07).
The standard jury instruction on robbery is incomplete because it does not include specific intent as an element of the crime. Bell v. State, 394 So. 2d 979 (Fla.1981). In Bell, however, the requested instruction was not given. In this case the instruction was not requested. Neither was the element of specific intent to permanently deprive another person of the property in question made an issue at trial, directly or indirectly. The omission of the intent element from a robbery instruction is not fundamental error in the absence of a real dispute on that question. Williams v. State, 400 So. 2d 542, (Fla. 3d DCA 1981).
After summing up the overwhelming evidence against the defendants, the prosecutor ended with the following:
Sometimes it makes you a little uncomfortable at night. But if you think, and I believe you cannot think otherwise, that they have both committed this crime, you must find both guilty and not think about the consequences, as the judge will tell you, and forget about it.
You can think you have done your duty done your obligation.
I ask you to listen carefully to see if the defense presents to you any direct evidence or comment on the evidence which show you any otherwise.
Thank you very much.
We have reviewed the comment in full context and find that it was a permissible comment pointing out the uncontradicted nature of the evidence. White v. State, 377 So. 2d 1149 (Fla.1979); State v. Jones, 204 So. 2d 515 (Fla.1967); Clinton v. State, 56 Fla. 57, 47 So. 389 (1908).
The convictions and sentences are affirmed as to robbery with a firearm and reversed as to possession of firearm while engaged in a felony.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stewart v. State, 420 So. 2d 862 (Fla. 1982)…ot receive such an instruction. The district courts of appeal have considered this issue and have held that fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict. Gibson v. State, 403 So. 2d 1019 (Fla. 3d DCA 1981), review granted, Feb. 15, 1982; Williams v. State, 400 So. 2d 542 (Fla. 3d DCA), review denied, 408 So. 2d 1096 (Fla.1981). See Leary v. State, 406 So. 2d 1222 (Fla. 4th DCA 1981). In the instant case Stewart took the stand in his…
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State v. Gibson, 452 So. 2d 553 (Fla. 1984)…the law applicable to the facts of the case. We therefore grant rehearing, revisit and rescind the decision, and withdraw our prior opinion. This case came to the Court for review of the decision of the district court of appeal in Gibson v. State, 403 So. 2d 1019 (Fla. 3d DCA 1981). We accepted jurisdiction on the ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const. The respondents were convicted of the following two offenses: (1) robbery while armed and (2) use or display of a firearm during the…
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Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984)…t. 1802, 76 L.Ed.2d 366 (1983); Henderson v. State, 429 So. 2d 1284 (Fla. 3d DCA 1983); Lewis v. State, 411 So. 2d 880 (Fla. 3d DCA 1981), rev. denied, 418 So. 2d 1279 (Fla.1982); Leary v. State, 406 So. 2d 1222 (Fla. 4th DCA 1981); Gibson v. State, 403 So. 2d 1019 (Fla. 3d DCA 1981), rev. denied, 436 So. 2d 32 (Fla.1983); McMurtroy v. State, 400 So. 2d 547 (Fla. 3d DCA), rev. denied, 408 So. 2d 1094 (Fla.1981); Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 7…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- White v. State, 377 So. 2d 1149 (Fla. 1979)
- Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)
- Buck Clinton and Edward Clinton v. State, 56 Fla. 57 (Fla. 1908)
- Buford Lee Jenrette v. State, 390 So. 2d 781 (Fla. 3d DCA 1980)
- Monroe v. State, 396 So. 2d 241 (Fla. 3d DCA 1981)
- Wooten v. State, 404 So. 2d 1072 (Fla. 3d DCA 1981)
- Alton T. Alexander v. State, 399 So. 2d 424 (Fla. 5th DCA 1981)