ELVIN LEE MOORE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed convictions for robbery, burglary, and battery, holding that accomplice testimony alone, if not insubstantial or inherently incredible, suffices for jury consideration, and that the defendant failed to establish a prior necessarily-included offense conviction supporting a double jeopardy defense.
Accomplice testimony, if not insubstantial or inherently incredible, is sufficient to present a jury question on guilt, and a double jeopardy defense based on a prior necessarily-included offense conviction requires proof that such a conviction actually occurred.
[1] Accomplice testimony, if not insubstantial or inherently incredible, is sufficient standing alone to support a conviction and present a jury question as to guilt.
[2] A double jeopardy defense based on a prior conviction of a necessarily-included lesser offense requires proof that such a prior conviction in fact occurred.
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Join FLexlaw to unlock all legal intelligenceDefendant Moore was convicted of robbery, burglary, and battery. The evidence against him included accomplice testimony, and he claimed double jeopard…
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PER CURIAM.
The defendant’s convictions for robbery, burglary and battery are affirmed upon holdings that (1) even if, arguendo, the evidence implicating the defendant in these crimes came solely from the testimony of his accomplice, such evidence, if not insubstantial or inherently incredible, is sufficient standing alone to present a jury question as to the defendant’s guilt, see United States v. Raffone, 693 F. 2d 1343 (11th Cir.1982), cert. denied sub nom. Farese v. United States, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983); and (2) the defendant’s claim that his trial on the robbery charge should have been dismissed on double jeopardy grounds because he had been previously convicted in the county court of the necessarily-included lesser petty larceny offense (conceded by the State to be legally viable) is not supported in this record by the necessary showing that a previous conviction of a necessarily-included offense in fact occurred.
The defendant’s sentence in excess of that recommended by the sentencing guidelines is affirmed upon a holding that the reasons given for departure in the trial court’s written order, including, inter alia, that the victim was maliciously, wantonly and cruelly beaten, that the victim (over eighty years old and living alone) was known to the defendant to be particularly vulnerable, and that the theft of the victim’s social security check upon which she depended for day-to-day living imposed a severe economic and emotional hardship upon the victim, see Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984), individually and together would more than justify the sentence imposed.
Affirmed.
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Cited By (11 total)
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Wemett v. State, 567 So. 2d 882 (Fla. 1990)…vulnerability, in light of psychological trauma and breach of trust by defendant, justified departure); Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986) (elderly victim, physical attack, verbal abuse causing psychological trauma); Moore v. State, 468 So. 2d 1081 (Fla. 3d DCA 1985) (elderly victim beaten, theft caused severe economic and emotional hardship). This rule must be carefully applied and is dependent on the circumstances of each case. As noted by the majority, Wemett gained entry to the victim’s h…1 / 2
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Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988)…nces. See McPherson v. State, 505 So. 2d 5, 6 (Fla. 1st DCA 1986); Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986); VonCarter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985); Morales v. State, 471 So. 2d 625, 626 (Fla. 2d DCA 1985); Moore v. State, 468 So. 2d 1081, 1082 (Fla. 3d DCA 1985). However, victim vulnerability is not a valid reason to [*219] depart when the victim’s helplessness is based on factors common to nearly all victims of armed robbery. Mathis v. State, 515 So. 2d 214, 215 (Fla.1987); Burney…
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Laberge v. State, 508 So. 2d 416 (Fla. 5th DCA 1987)…children is covered by section 800.04, that vulnerability is not a valid reason for departure as when the victim is elderly. See Lewis v. State, 496 So. 2d 211 (Fla. 1st DCA 1986); Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986); Moore v. State, 468 So. 2d 1081 (Fla. 3d DCA 1985).…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lochner v. United States, 461 U.S. 931 (U.S. 1983)
- United States v. Geno Pasquale Raffone, 693 F.2d 1343 (11th Cir. 1982)
- Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984)