MICHAEL THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A conviction for a lesser included misdemeanor offense necessarily negates the felony element required for a conviction of possession of a firearm during the commission of a felony.
Appellant was charged with possession of a firearm while committing a felony (aggravated assault) and aggravated assault. The jury convicted him of th…
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PER CURIAM.
Appellant, Thomas, was charged with and tried for, in Count I, possession of a firearm while committing a felony (aggravated assault) and, in Count II, aggravated assault.
He was found guilty by jury verdict of the offense charged in Count I but as to Count II he was convicted of the lesser included offense of simple assault.
On appeal, Thomas presents the rather logical argument that since he was convicted of simple assault (a misdemeanor) he was necessarily acquitted of the felony charge, and thus, he could not at the same time be convicted of possession of a firearm while committing a felony.1
His logic is sound, as is his law. Redondo v. State, 403 So. 2d 954 (Fla.1981), upon which he relies, clearly supports his position and requires that the judgment and sentence on Count I be reversed and that he be discharged as to the possession charge.
Reversed as to the judgment on Count I, affirmed as to the judgment on Count II (which was also appealed but as to which no issue is raised). BERANEK, HERSEY, JJ., and WILLIAM C. OWEN, Jr., Associate Judge, concur. . Thomas is fortunate that as to Count II, the jury (in acquitting him of any felony) found him guilty of a lesser included misdemeanor. If, instead, the jury had acquitted him on Count I totally and completely, and he made the same argument as he presents here (despite its seeming to be equally, if not more, logical), he would fail. See Pitts v. State, 425 So. 2d 542 (Fla.1983).
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Citator
Cited By
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Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983)…lying felony was a part of the crime charged — without the underlying felony the charge could not stand. The jury is, in all cases, required to return consistent verdicts as to the guilt of an individual 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…
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Herring v. State, 435 So. 2d 865 (Fla. 3d DCA 1983)…proceedings. The state has conceded that Redondo v. State, 403 So. 2d 954 (Fla.1981), controls Count IV of the information and the trial court is therefore directed to vacate the conviction and sentence entered upon Count IV. See Thomas v. State, 430 So. 2d 616, 617 (Fla. 2d DCA 1983). As for Count VI, section 316.027(2), Florida Statutes (1979), is violated if the driver of a vehicle involved in a traffic accident resulting in injury or death willfully fails to remain at the scene of the accident until…
Authorities Cited
- Redondo v. State, 403 So. 2d 954 (Fla. 1981)
- Pitts v. State, 425 So. 2d 542 (Fla. 1983)