THOMAS C. WHEELER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A conviction is not final and cannot be used to convict a subsequent felony offender until affirmed on appeal.
Appellant was charged with possession of a firearm by a convicted felon. The prior felony conviction upon which the charge was based was still pending…
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RYDER, Chief Judge.
Thomas C. Wheeler, pro se, appeals from a plea of nolo contendere in which he specifically reserved the right to appeal the trial court’s denial of his motion to dismiss.
In 1982, appellant was convicted on a cocaine possession charge. He filed a su-persedeas bond and appealed the conviction. In March of 1983, the state charged appellant with carrying a concealed firearm, possession of a firearm by a convicted felon and discharging a firearm in public. In his motion to dismiss, appellant alleged that he could not be charged with possession of a firearm by a convicted felon because the charge was based upon a prior felony conviction which was still pending on appeal and, therefore, he was not a felon for purposes of conviction under section 790.23, Florida Statutes (1981). The court denied the motion. Appellant then entered a plea of nolo contendere and specifically reserved the right to appeal the denial of his motion to dismiss. Appellant’s cocaine possession conviction was affirmed by this court on June 17, 1983. Wheeler v. State, 436 So. 2d 114 (Fla. 2d DCA 1983).
At the time the court considered appellant's motion to dismiss, his conviction had not yet been affirmed by the appellate court. A conviction is not final and cannot be relied upon to convict a subsequent felony offender until the appellate court affirms the conviction. Joyner v. State, 158 Fla. 806, 30 So. 2d 304, 305 (1947). The trial court should have dismissed the possession of a firearm by a convicted felon charge. Cf. State v. Villafane, 444 So. 2d 71, 72 (Fla. 4th DCA 1984); Coleman v. State, 281 So. 2d 226, 227 (Fla. 2d DCA 1973). Consequently, we reverse the trial court and set aside the judgment and sentence on the charge of felonious possession of a firearm.
DANAHY and SCHOONOVER, JJ„ concur.
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State v. Snyder, 673 So. 2d 9 (Fla. 1996)…WELLS, Justice, concurring part and dissenting in part. I concur with the resolution of the conflict in the majority opinion approving Burkett v. State, 518 So. 2d 1363 (Fla. 1st DCA 1988), and disapproving Wheeler v. State, 465 So. 2d 639 (Fla. 2d DCA 1985). I dissent from the majority’s decision to approve the district court’s reversal of Snyder’s conviction. I would remand with directions to reinstate the conviction of Snyder for convicted felon in possession of a firearm.…1 / 2
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State v. Degrossi, 680 So. 2d 1093 (Fla. 3d DCA 1996)…different interpretations depending upon the context in which it is used. See Johnson v. State, 664 So. 2d 986 (Fla. 4th DCA 1995), approved in part, 668 So. 2d 194 (Fla.1996); Burkett v. State, 518 So. 2d 1363 (Fla. 1st DCA 1988); Wheeler v. State, 465 So. 2d 639 (Fla. 2d DCA 1985). Here, given the procedural framework established by the legislature requiring the Department to compel surrender of a license to protect the public safety, we conclude that the legislature intended the adjudication of guilt in th…
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Burkett v. State, 518 So. 2d 1363 (Fla. 1st DCA 1988)…onclusion of judicial involvement in a case. He contends, however, that when a defendant pursues an appeal of a judgment and sentence, he is not considered a convicted felon until the appellate court affirms the conviction, citing Wheeler v. State, 465 So. 2d 639 (Fla. 2d DCA 1985). He argues that a defendant free on an appeal bond is not prohibited from possessing a firearm, or voting, or otherwise exercising his constitutional and civil rights during the pendency of that appeal.3 He [*1365] asserts that at…1 / 2
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
- Joyner v. State, 158 Fla. 806 (Fla. 1947)
- Cleve Carson and Laura Carson v. Iacona, 281 So. 2d 226 (Fla. 1st DCA 1973)
- State v. Villafane, 444 So. 2d 71 (Fla. 4th DCA 1984)