JOSE MANUEL GARCIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Garcia appeals his armed robbery conviction, challenging the sufficiency of evidence and the admission of a firearm. The court affirms the conviction but certifies to the Florida Supreme Court a question of great public importance regarding whether a defendant can be convicted of a lesser included offense after conviction of the greater crime, given conflicting recent Florida Supreme Court precedent.
The evidence is sufficient to sustain the conviction and there was no error in admitting the firearm. Although Garcia was convicted of both the greater and lesser included offense, the court is bound to affirm because the double jeopardy defense was waived by failing to raise it on appeal. However, the court certifies a question of great public importance to the Florida Supreme Court regarding the permissibility of such dual convictions.
[1] Sufficiency of evidence to sustain an armed robbery conviction is affirmed when the evidence presented is adequate.
[2] A firearm is admissible into evidence at trial in an armed robbery prosecution.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The evidence is quite sufficient and we affirm the conviction and sentence.”
Establishes that the appellate court found Garcia's sufficiency of evidence challenge to lack merit.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGarcia was convicted of both armed robbery and the lesser included offense of possession of a firearm in the commission of a felony, though he receive…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Possession Of A Firearm During The Commission Of A Felony cases and more on FLexlaw
DAUKSCH, Judge.
This is an appeal from a conviction for the crime of armed robbery. The appellant asserts that the evidence was insufficient to sustain a conviction. The evidence is quite sufficient and we affirm the conviction and sentence. We also find no merit in the appellant’s assertion that it was error to admit a firearm into evidence at trial.
Although the appellant did not raise the point on appeal, we notice he was convicted both of armed robbery and the lesser included offense of possession of a firearm in the commission of a felony. Because a double jeopardy defense can be waived and because appellant failed to raise the defense, we are bound to affirm the conviction (there was no sentence under the firearm conviction). See, Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981); Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980); Bell v. State, 262 So. 2d 244 (Fla. 4th DCA 1972).
However, we do certify to the Florida Supreme Court a question of great public importance which is inherent in this case, to-wit: Whether one can be convicted, although not sentenced, of a lesser included offense after he has been convicted of the greater crime. State v. Monroe, 406 So. 2d 1115 (Fla.1981) and State v. Hegstrom, 401 So. 2d 1343 (Fla.1981) say one can be convicted but not sentenced for the lesser included offense.
Additionally, State v. Gibson, No. 61,325 (Fla. February 17, 1983) [8 FLW 199] held that separate sentences for the offenses of robbery with a firearm and possession of a firearm were not authorized, even though separate convictions were proper. After those decisions, the Florida Supreme Court announced in Bell v. State, 437 So. 2d 1057 (Fla.1983) that sentences and convictions for both a greater and lesser included offense arising out of the same occurrence are prohibited.
However, the court in Bell did not address or expressly recede from its holding in State v. Gibson. After Bell, the court in Hawkins v. State, 436 So. 2d 44 (Fla.1983) held that the defendant could not be separately sentenced for the underlying felony in a felony murder case but allowed the conviction to remain intact. It appears to us that the Hawkins decision may have been mistakenly issued and was not intended to be the latest pronouncement of the supreme court on double jeopardy. Contra, Judge Nesbitt’s dissent in Boivin v. State, 436 So. 2d 1074 (Fla. 3d DCA 1983).
This dissent refers to Hawkins as a lesser included offense conviction as opposed to an underlying felony conviction, but we see no substantial difference. The real question remains: which case establishes the final binding precedent for Florida courts?
Counsel are reminded that the supreme court will not take jurisdiction unless a petition is timely filed.
AFFIRMED.
SHARP, J., and MIZE, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984)…clause, we cannot conclude other than that the court has receded from Hegstrom as well as from Monroe. Thus the apparent inconsistency between Hawkins and Bell can only be explained by assuming that Hawkins was issued in error (see Garcia v. State, 444 So. 2d 969, Fla. 5th DCA 1983), or that because Bell was not final when Hawkins was issued, Bell is actually the latest pronouncement of the supreme court and that it recedes from Hawkins as well. See also, Portee v. State, 447 So. 2d 219 (Fla.1984). We note…
-
Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)…ights or of their violation. This court has previously held that the violation of a defendant’s constitutional double jeopardy rights does not constitute a fundamental error but is subject to the contemporaneous objection rule. See Garcia v. State, 444 So. 2d 969 (Fla. 5th DCA 1983); Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981), review denied, 411 So. 2d 381 (Fla.1981); Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980). These cases were based on the authority of cases decided in two other district…1 / 2
-
Foster v. State, 557 So. 2d 634 (Fla. 3d DCA 1990)…A document may be used to refresh recollection, but it may not be used to put words in a witness’s mouth. Esperti v. United States, 406 F. 2d 148 (5th Cir.), cert. denied, 395 U.S. 938, 89 S.Ct. 2005, 23 L.Ed.2d 458 (1969); see also Garcia v. State, 444 So. 2d 969 (Fla. 5th DCA 1983), discussion quashed, conviction approved on other grounds, 476 So. 2d 170 (Fla.1985); C. Ehrhardt, Florida Evidence § 613.1 (1984). The automobile repair receipt shown to Clara Suarez did more than refresh her recollection; it su…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- State v. Williams, 406 So. 2d 1115 (Fla. 1981)
- Hawkins v. State, 436 So. 2d 44 (Fla. 1983)
- Bell v. State, 262 So. 2d 244 (Fla. 1st DCA 1972)
- Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981)
- Riddle v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)
- Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)
- Jules Boivin v. State, 436 So. 2d 1074 (Fla. 3d DCA 1983)