MAJOR VANCE, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court resolved a conflict between two district courts regarding whether a single exhibition of a firearm in the presence of multiple persons constitutes one or multiple violations of Florida's improper exhibition statute. The Court held that only one conviction can be imposed for a single act of exhibition, regardless of how many people witnessed it.
A single exhibition of a firearm in the presence of multiple persons violates Section 790.10 only once, and therefore only one conviction can be imposed for that single act. Multiple convictions arising from one act of exhibition are totally unsupported by evidence.
[1] A conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.
[2] A statute proscribing the exhibition of a weapon in the presence of one or more persons contemplates a single act, precluding multiple convictions for a single exhibition…
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Join FLexlaw to unlock all legal intelligence“a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error”
Establishes the standard allowing appellate review of evidentiary sufficiency issues that might otherwise be waived
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Join FLexlaw to unlock all legal intelligenceOn July 13, 1982, Catherine Jackson demanded a refund from petitioner Vance for unsatisfactory topsoil and yard work she had paid him to deliver. When…
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SHAW, Justice.
We have before us a petition to review Vance v. State, 452 So. 2d 994 (Fla. 3d DCA 1984), which is in express and direct conflict with Solomon v. State, 442 So. 2d 1030 (Fla. 1st DCA 1983).
Testimony at trial established that on July 13, 1982, Catherine Jackson paid petitioner in advance to deliver top soil to her yard and do some yard work. Dissatisfied with the quality of the soil he delivered, she went to petitioner’s trailer with her nephew, Michael Fleming. When petitioner came to the door, Jackson told him she wanted her money back right then or she would file suit against him. Petitioner lifted his shirt, pulled out a gun, and ordered Jackson and Fleming to leave. At trial there was testimony from both Jackson and Fleming that petitioner pointed the gun at them.
Petitioner was charged with two counts of aggravated assault with a deadly weapon. Defense counsel requested instructions on the lesser included offense of improper exhibition of a dangerous weapon under section 790.10, Florida Statutes (1981), which provides:
790.10 Improper exhibition of dangerous weapons or firearms. — If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis supplied.)
The jury returned guilty verdicts on each count for the lesser included offense of improper exhibition of a dangerous weapon, and the trial court imposed sentences for each conviction.
On appeal, petitioner relied on Solomon to argue that the separate convictions and sentences were impermissible, as section 790.10 obviously contemplates the act of exhibiting a firearm in the presence of two persons. The district court refused to reach the issue, finding the defendant es- topped to complain because he had requested the instructions that were given. The district court disagreed with Solomon “[ijnsofar as [it] finds the error of separate convictions under [Section 790.10 fundamental ....” Vance, 452 So. 2d at 995-96 n.1.
The district court did not have the benefit of our decision in Troedel v. State, 462 So. 2d 392, 399 (Fla.1984), wherein we held that “a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.” Under Troedel we reach the issue presented on its merits. Section 790.10 by its express wording proscribes the act of exhibiting the weapon in the presence of one or more persons. We approve the interpretation of section 790.10 in Solomon that precludes multiple convictions for a single act of exhibition. The facts in the present case are similar to those in Solomon, and we hold that petitioner’s exhibition of the firearm in the presence of two persons at the door of his trailer violated the statute only one time. A second conviction is therefore totally unsupported by evidence.
We quash the decision of the district court and remand with directions to reverse one of petitioner’s convictions.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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F.B. v. State, 852 So. 2d 226 (Fla. 2003)…burglary convictions because “[tjhere was no evidence of more than one such unlawful entry.” We held that “a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.” Id. We applied this rule in Vance v. State, 472 So. 2d 734 (Fla.1985), in which the petitioner was charged with two counts of aggravated assault with a deadly weapon and was convicted on each of the lesser-included offense of improper exhibition of a dangerous weapon under section 790.10, Florida Statutes (…
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Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009)…nts of the offense are otherwise satisfied, multiple convictions are permissible. Thus, the statute is not ambiguous as to the allowable unit of prosecution. The rule of lenity does not apply in this situation.3 We further find that Vance v. State, 472 So. 2d 734 (Fla.1985), Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998), and Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995), relied upon by Mauldin, are distinguishable. In these cases, the courts held that multiple convictions for improper firearm disp…
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Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995)…trial court withheld adjudication and imposed a probationary term of one year upon appellant. Appellant correctly asserts that it is improper to receive two convictions for a single act of improperly exhibiting a dangerous weapon. Vance v. State, 472 So. 2d 734 (Fla. 1985) (specifically approving Solomon v. State, 442 So. 2d 1030 (Fla. 1st DCA 1983)). Although the trial court withheld adjudication on both counts, appellant suffers prejudice in that an adjudication withheld constitutes a conviction under Fl…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Troedel v. State, 462 So. 2d 392 (Fla. 1984)
- Fayson v. State, 442 So. 2d 1030 (Fla. 5th DCA 1983)
- Solomon v. State, 442 So. 2d 1030 (Fla. 1st DCA 1983)
- Major Vance v. State, 452 So. 2d 994 (Fla. 3d DCA 1984)