STATE OF FLORIDA, PETITIONER,
v.
TERRELL THOMPSON, RESPONDENT
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The Florida Supreme Court addressed whether a defendant can be convicted and sentenced for both felony murder and the underlying felony (attempted robbery) when the felony is a necessary element of the murder charge. The Court held that while dual convictions are permissible, only one sentence for the greater offense is proper, and retroactive application of this rule does not violate the Ex Post Facto Clause.
A defendant may be convicted of both felony murder and the underlying felony, but only one sentence—for the greater offense—is permissible. Retroactive application of this rule does not violate the Ex Post Facto Clause because the underlying statutes existed at the time of the offense, providing fair warning that both crimes could be punished.
[1] A defendant may be convicted of both felony murder and the underlying felony, but sentenced only for the greater offense.
[2] Application of a judicial decision clarifying sentencing rules for felony murder and the underlying felony does not constitute an ex post facto violation when the underly…
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Join FLexlaw to unlock all legal intelligence“This Court held in Hegstrom that under these circumstances it is permissible to convict a defendant of both felony murder and the underlying felony but that only one sentence, for the greater offense, is proper.”
Establishes the central holding regarding dual convictions and singular sentencing
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Join FLexlaw to unlock all legal intelligenceThompson was convicted and sentenced for both attempted robbery and first-degree felony murder arising from a single incident. The underlying attempte…
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OVERTON, Justice.
This is a petition to review a decision of the Third District Court of Appeal reported as Thompson v. State, 397 So. 2d 354 (Fla. 3d DCA 1981). We find direct conflict with our decision in State v. Hegstrom, 401 So. 2d 1343 (Fla.1981). See art. V, § 3(b)(3), Fla. Const. The issue in the instant case concerns the constitutionality of multiple punishments arising out of a single incident, one sentence for first-degree felony murder and one sentence for attempted robbery, when the attempted robbery is a necessary element of the murder charge. This Court held in Hegstrom that under these circumstances it is permissible to convict a defendant of both felony murder and the underlying felony but that only one sentence, for the greater offense, is proper. In the instant case, respondent was convicted and sentenced for attempted robbery and felony murder. The district court upheld the felony murder conviction and sentence but reversed the conviction and sentence for attempted robbery, holding that under State v. Pinder, 375 So. 2d 836 (Fla.1979), one could not be convicted and sentenced for both felony murder and the underlying felony. In this appeal, the state first seeks that we review the evidence and find that respondent was appropriately convicted of premeditated first-degree murder, not felony murder. We reject this contention. Again, as in Hegstrom, we decline to accept this case for review on one basis and then reweigh the evidence reviewed by the district court in order to avoid ruling on the real issue that brought the case to us.
The state next asks that we, in any event, reinstate respondent’s conviction for attempted robbery in accordance with Heg-strom. Respondent concedes that ordinarily our decision in Hegstrom would control and that an affirmance of his conviction for attempted robbery would be proper. But he argues that, because his crime and conviction occurred before our Hegstrom decision issued, that decision cannot apply, and that reinstatement of the attempted robbery conviction would constitute an ex post facto violation. We are unpersuaded by this argument. The United States Supreme Court has addressed this issue in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), in which it said:
The Ex Post Facto Clause is a limitation upon the powers of the Legislature .. . and does not of its own force apply to the Judicial Branch of government.. . . But the principle on which the Clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty.
Id. at 191, 97 S.Ct. at 992 (emphasis ours).
Respondent was properly convicted of felony murder and attempted robbery. The statutes enumerating those crimes existed at the time of respondent’s offense. Respondent clearly, therefore, had more than “fair warning” that his acts constituted crimes against the people of the State of Florida and that he could possibly be punished for both. Our application to respondent of Hegstrom is clearly not an ex post facto application of that decision.
Accordingly, we reverse that portion of the district court’s decision which sets aside respondent’s attempted robbery conviction and affirm the remainder of the opinion, including the vacation of the sentence for attempted robbery. The cause is remanded to the trial court for reinstatement of respondent’s attempted robbery conviction.
It is so ordered.
SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…tting a felony, the latter being a necessarily lesser included offense. The Florida Supreme Court affirmed both convictions but reversed the sentence for the lesser included offense. The Hegstrom case was again [*39] reaffirmed in State v. Thompson, 413 So. 2d 757 (Fla.1982). In Borges v. State, 415 So. 2d 1265 (Fla.1982), the Florida Supreme Court rejected the argument that the determination of a lesser included offense, from a constitutional consideration, should focus on “the variables of evidentiary proo…
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Rodriquez v. State, 443 So. 2d 236 (Fla. 5th DCA 1983)…450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). . State v. Hegstrom, 401 So. 2d 1343 (Fla.1981); State v. Monroe, 406 So. 2d 1115 (Fla.1981); State v. Thompson, 413 So. 2d 757 (Fla.1982). . Paragraph (1) of section 812.014 defines the crime of theft as follows: (1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent: (a) To deprive the other…
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Tien Wang v. State, 426 So. 2d 1004 (Fla. 3d DCA 1983)…(Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982) (citations omitted). See also Davis v. State, 138 Fla. 798, 190 So. 259 (1939); Thompson v. State, 397 So. 2d 354 (Fla.3d DCA 1981), modified sub nom., State v. Thompson, 413 So. 2d 757 (Fla.1982); Hines v. State, 227 So. 2d 334 (Fla.lst DCA 1969); Weaver v. State, 220 So. 2d 53 (Fla.2d DCA), cert. denied, 225 So. 2d 913 (Fla.1969). Thus, a “[premeditated design to effect the death of a human being is more than simply an intent to…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marks v. United States, 430 U.S. 188 (U.S. 1977)
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- Terrel Thompson v. State, 397 So. 2d 354 (Fla. 3d DCA 1981)