JERRY WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dual convictions for robbery with a firearm and aggravated assault with a deadly weapon, or for robbery with a firearm and possession of a firearm during a felony, are improper when arising from a single criminal act.
Appellant was convicted of robbery with a firearm, aggravated assault with a deadly weapon, and possession of a firearm during a felony for a single i…
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COBB, Judge.
This is an appeal from convictions for robbery with a firearm, aggravated assault with a deadly weapon and possession of a firearm in the commission of a felony.
Appellant robbed a store and pointed a pistol at the clerk in the process. For this incident he was convicted of both armed robbery and aggravated assault with a deadly weapon. These dual convictions would have been proper under State v. Baker, 452 So. 2d 927 (Fla.1984), wherein the Supreme Court of Florida held that aggravated assault with a deadly weapon was not a necessarily included lesser offense of armed robbery since the former requires use of a deadly weapon and the latter requires only that a deadly weapon be carried.
In 1986, however, the Supreme Court of Florida overruled Baker sub si-lentio in Royal v. State, 490 So. 2d 44 (Fla. 1986) by holding that aggravated assault with a deadly weapon is a necessarily lesser included offense of robbery with a firearm. Therefore, Wright cannot be convicted of both the greater offense and a necessarily lesser included offense for one criminal act. This conclusion is buttressed by the language of the Supreme Court of Florida’s majority opinion in Carawan v. State, 515 So. 2d 161 (Fla.1987) relating to the doctrine of lenity and the “single evil” analysis of legislative intent.
In the recent case of Hall v. State, 517 So. 2d 678 (Fla.1988), the Florida Supreme Court, applying Carawan, held that convictions for both armed robbery under section 812.13(2)(a) and possession of a firearm while committing a felony per section 790.07(2) cannot stand for the single act of displaying or carrying a firearm while committing a robbery.
The conviction for robbery with a firearm is affirmed; the convictions for aggravated assault and possession of a firearm are reversed. AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.
DAUKSCH and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (31 total)
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Taylor v. State, 608 So. 2d 804 (Fla. 1992)…as the perpetrator has the weapon in his possession during the offense. Id. at 929. We acknowledge that our opinion in Royal v. State placed this rationale in doubt. Compare Brown v. State, 569 So. 2d 1320 (Fla. 1st DCA 1990), with Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). However, it must be noted that the necessarily lesser included offense question was not the primary issue in Royal, and we did not expressly overrule Baker. In any event, we hereby reiterate that aggravated assault is not a cate…
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…529 So. 2d 1213 (Fla. 4th DCA), rev. denied, 539 So. 2d 476 (Fla.1988); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1987); Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988); Richardson v. State, 523 So. 2d 746 (Fla. 5th DCA 1988); Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). . But see Wheeler v. State, 344 So. 2d 244 (Fla.1977); Martin v. 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 S…
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Alphonse Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989)…la. 5th DCA 1989). See also Hall v. State, 517 So. 2d 678 (Fla.1988); Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989); Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988); Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988); and Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). SENTENCING Kelly also appeals the imposition of four consecutive minimum mandatory sentences6 for the three convictions for attempted murder and the conviction for aggravated assault. Consecutive, minimum mandatory sentences a…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- State v. Baker, 452 So. 2d 927 (Fla. 1984)
- Royal v. State, 490 So. 2d 44 (Fla. 1986)