JULES BOIVIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jules Boivin was convicted of attempted murder, aggravated battery, and possession of a firearm during a felony for shooting at a man and his son who came to Boivin's trailer. The court vacated the convictions for aggravated battery and firearm possession as lesser included offenses of attempted murder, affirming only the attempted murder conviction under Florida law prohibiting multiple convictions for lesser included offenses.
The court held that aggravated battery predicated on the rifle shooting is a lesser included offense of attempted murder based on the same shooting, and that possession of a firearm during commission of a felony based on the shooting is a lesser included offense of aggravated battery. Section 775.021(4) of the Florida Statutes precludes multiple convictions and sentences for lesser included offenses, so the convictions and sentences for aggravated battery and firearm possession were vacated while the attempted murder conviction and sentence were affirmed.
[1] Aggravated battery predicated upon a shooting is a lesser included offense of attempted murder based on the same shooting.
[2] Possession of a firearm during the commission of a felony is a lesser included offense of aggravated battery arising from the same act.
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Join FLexlaw to unlock all legal intelligence“the aggravated battery predicated upon the shooting with a rifle is a lesser included offense of the attempted murder, which was also based upon the shooting with a rifle”
Establishes the legal principle that when the same conduct forms the basis for multiple charges, a more serious charge precludes conviction on a lesser included offense.
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Join FLexlaw to unlock all legal intelligenceBoivin shot at a man and his son who came to his trailer to apologize for bumping into it. The victim had been discharged from military service with a…
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BASKIN, Judge.
Of the points raised by appellant in this appeal only the challenge to his convictions and fifteen-year concurrent sentences for attempted murder, aggravated battery and possession of a firearm in the commission of a felony has merit. Boivin shot at a man and his son who came to Boivin’s trailer to apologize for bumping into the trailer. The victim had been discharged from military service with a 100% disability and had a history of mental problems. Boivin stated that he had to shoot because “they were going to bury [him].” His shot injured the son. Following return of the jury’s verdicts of guilt, the court entered the contested adjudications and sentences.
Upon review of the record we have determined that under the circumstances of this case, the aggravated battery predicated upon the shooting with a rifle is a lesser included offense of the attempted murder, which was also based upon the shooting with a rifle, Brown v. State, 206 So. 2d 377 (Fla.1968); Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978); Florida Standard Jury Instructions; In re Standard Jury Instructions, 431 So. 2d 594 (Fla.1981); and that possession of a firearm during the commission of any felony also predicated upon the shooting with a rifle is a lesser included offense of the aggravated battery. Cf. Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982) (felonious display of a firearm lesser included of aggravated assault). Since section 775.021(4), Florida Statutes (1981), precludes the imposition of multiple convictions and sentences which are lesser included offenses,* we vacate the convic tions and sentences for aggravated battery and for possession of a firearm during the commission of a felony. Bell v. State, 437 So. 2d 1057 (Fla.1983); State v. Gibson, No. 61,235 (Fla. February 17, 1983) [8 FLW 76]. But see Hawkins v. State, 436 So. 2d 44 (Fla.1983). In all other respects the conviction and sentence for attempted murder are affirmed.
Affirmed as modified.
*
Section 775.021(4) provides:
Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separate ly for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
NESBITT, Judge
(dissenting):
Because we are bound to follow the latest pronouncement from the supreme court, I dissent. In Hawkins v. State, 436 So. 2d 44 (Fla.1983), the court held that the defendant could not be separately sentenced for a lesser included offense, but allowed the conviction to remain intact. Following that decision, I would affirm the convictions for the lesser included offenses of aggravated battery and possession of a firearm during the commission of a felony, and only vacate the sentences.
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Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…ay v. State, 403 So. 2d 956 (Fla.1981); Spencer v. State, 438 So. 2d 864 (Fla. 1st DCA 1983); Anderson v. State, Nos. AO-281 and AO-282 (Fla. 1st DCA July 18, 1983) [1983 FLW 1888]; Parks v. State, 437 So. 2d 790 (Fla. 2d DCA 1983); Boivin v. State, 436 So. 2d 1074 (Fla. 3d DCA 1983); Walker v. State, 386 So. 2d 630 (Fla. 5th DCA 1980). The analysis and comparison of the essential constituent elements of criminal offenses, which is the true Blockburger test, is the view in State v. Cantrell, 417 So. 2d 260 (F…1 / 2
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State v. Jules Boivin, 487 So. 2d 1037 (Fla. 1986)…stice. We have for review yet another case because of conflict over what is and what is not a lesser included offense. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we quash in part and approve in part Boivin v. State, 436 So. 2d 1074 (Fla. 3d DCA 1983). In this case the district court relied on Bell v. State, 437 So. 2d 1057 (Fla.1983), and reversed Boivin’s convictions of and sentences for aggravated battery and possession of a firearm during commission of a felony, finding th…
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Enriquez v. State, 449 So. 2d 845 (Fla. 3d DCA 1984)…tate, 400 So. 2d 542 (Fla. 3d DCA 1981). The fifth point relating to error in the convicting and sentencing on the underlying felony, to wit: robbery, is well taken. On the authority of Bell v. State, 437 So. 2d 1057 (Fla.1983) and Boivin v. State, 436 So. 2d 1074 (Fla. 3d DCA 1983), we vacate the conviction and sentence for robbery. But see, Hawkins v. State, 436 So. 2d 44 (Fla.1983). The defendant’s final point requests this court remand the cause to the trial court due to the absence of a transcript of a…
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
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- In re the USE BY the Trial Courts OF the Standard Jury Instructions IN Crim. Cases & the Standard Jury Instructions in Misdemeanor Cases, 431 So. 2d 594 (Fla. 1981)
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- Hawkins v. State, 436 So. 2d 44 (Fla. 1983)
- Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982)
- Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978)