JOSE MANUEL GARCIA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court answered a certified question of great public importance by holding that a defendant cannot be convicted of a necessarily lesser included offense after conviction of the greater crime, even if not sentenced. The court approved Garcia's convictions for both armed robbery and firearm use but clarified that the firearm statute is not a necessarily lesser included offense of armed robbery and remanded for sentencing on the firearm charge.
The court answered the certified question in the negative, holding that one can neither be convicted of nor sentenced for a necessarily lesser included offense. The court further held that armed robbery and use of a firearm during commission of a felony have different statutory elements and the latter is not a necessarily lesser included offense of the former.
[1] A defendant cannot be convicted of a necessarily lesser included offense after being convicted of the greater crime.
[2] The offense of displaying, using, threatening, or attempting to use a firearm during the commission of a felony is not a necessarily lesser included offense of armed robb…
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Join FLexlaw to unlock all legal intelligence“one can neither be convicted of nor sentenced for a necessarily lesser included offense”
This is the core holding answering the certified question about double convictions for greater and lesser included offenses.
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Join FLexlaw to unlock all legal intelligenceGarcia was charged with armed robbery and with displaying, using, threatening, or attempting to use a firearm during commission of a felony. A jury fo…
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McDONALD, Justice.
A district court of appeal has certified the following question as being of great public importance: “Whether one can be convicted, although not sentenced, of a lesser included offense after he has been convicted of the greater crime.” Garcia v. State, 444 So. 2d 969, 970 (Fla. 5th DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer the question in the negative, but we hold that it is inapplicable to the instant case and quash the district court’s discussion of the law regarding lesser included offenses.
The state charged Garcia with armed robbery under subsection 812.13(2)(a); Florida Statutes (1981), and with displaying, using, threatening, or attempting to use a firearm during the commission of a felony under subsection 790.07(2), Florida Statutes (1981). A jury found him guilty of both counts as charged. The trial court adjudicated Garcia guilty and gave him a twenty-year sentence for the armed robbery. The trial court imposed no sentence for the firearm conviction.1
On appeal the district court “noted” that Garcia had been convicted of both a greater and a lesser included offense. The court expressed its confusion regarding the law on lesser included offenses and framed its certified question. Because Garcia had not raised the conviction of a lesser included offense on appeal, the district court affirmed his convictions.
We have recently issued numerous opinions clarifying the law as to lesser included offenses. Indeed, we essentially answered the question posed here in State v. Enmund, 476 So. 2d 165 (Fla.1985), where we overruled State v. Hegstrom, 401 So. 2d 1343 (Fla.1981), which held that the conviction, but not the sentence, for a necessarily lesser included offense could be affirmed. See also Bell v. State, 437 So. 2d 1057, 1058 (Fla.1983) (“We did not intend to hold in Hegstrom that the double jeopardy clause ... permits a defendant to be convicted of both a greater and a lesser included offense provided no sentence is imposed for the lesser included offense.”); State v. Baker, 456 So. 2d 419 (Fla.1984) (Bell is limited to necessarily lesser included offenses.). We therefore answer the district court’s question in the negative and hold that one can neither be convicted of nor sentenced for a necessarily lesser included offense.
Answering the district court’s question, however, does not resolve the instant case. In State v. Gibson, 452 So. 2d 553 (Fla.1984), a jury convicted the Gibsons of armed robbery and of use or display of a firearm during commission of a felony. Relying on State v. Pinder, 375 So. 2d 836 (Fla.1979), the district court reversed the Gibsons’ convictions and sentences on the firearms charges, finding them to be lesser included offenses of armed robbery. After analyzing the applicable statutes pursuant to the test set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), we found that armed robbery and use of a firearm during commission of a felony have different statutory elements and that the latter is not a necessarily lesser included offense of the former.2 The district court did not have the benefit of Gibson when considering this case and incorrectly concluded that the instant firearms charge was a lesser included offense of armed robbery.
We approve the district court’s affirmance of Garcia’s convictions. Although we' answer the certified question in the negative, we find it not applicable to this case and quash the district court’s discussion of the state of the law of lesser included offenses. Finally, we direct the district court to remand this case to the trial court for imposition of sentence on the firearms charge.
It is so ordered.
BOYD, C.J., and ALDERMAN, EHRLICH and SHAW, JJ., concur. ADKINS and OVERTON, JJ., dissent.
. The transcript of the sentencing hearing is not included in the record on appeal.
. We went even further in Gibson and held: "Because double jeopardy permits it and the legislature clearly intends it, we hold separate prosecutions and punishments are proper, and, as far as the double jeopardy argument is concerned, we would hold so even if the Blockburger test were not satisfied." 452 So. 2d at 558.
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…State, 574 So. 2d 1118 (Fla. 3d DCA 1990); Gandy v. State, 560 So. 2d 1363 (Fla. 1st DCA 1990); Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), rev. denied, 536 So. 2d 244 (Fla.1988). . See State v. Glenn, 558 So. 2d 4 (Fla.1990); Garcia v. State, 476 So. 2d 170 (Fla.1985); Owens v. State, 475 So. 2d 1238 (Fla.1985); State v. Baker, 452 So. 2d 927 (Fla.1984); State v. Gibson, 452 So. 2d 553 (Fla.1984); Collins v. State, 577 So. 2d 986 (Fla. 4th DCA 1991); Brown v. State, 569 So. 2d 1320 (Fla. 1st DCA 1990);…
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Foster v. State, 557 So. 2d 634 (Fla. 3d DCA 1990)…ss’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 supplied her the missing information without which the state was unable to prove ownership of th…
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Savage v. State, 494 So. 2d 274 (Fla. 2d DCA 1986)…DMAN, EDWARD F., (Ret.) J., concur. . For an enlightening discussion of this statute, which codifies Blockburger, see State v. Enmund, 476 So. 2d 165 (Fla.1985) (underlying felony not a lesser included offense of felony murder) and Garcia v. State, 476 So. 2d 170 (Fla.1985) (use of a firearm during commission of a felony is not a lesser included offense of armed robbery), and see generally Kaden, End of the Single Transaction Rule, 57 Fla.B.J. 693 (1983).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- State v. Carney, 476 So. 2d 165 (Fla. 1985)
- State v. Enmund, 476 So. 2d 165 (Fla. 1985)
- State v. Gibson, 452 So. 2d 553 (Fla. 1984)
- Garcia v. State, 444 So. 2d 969 (Fla. 5th DCA 1983)