RODNEY BURTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED.
DAUKSCH and ORFINGER, JJ., concur. COWART, J., concurs specially with opinion.
COWART, Judge,
concurring specially.
Based on evidence that the defendant fired from the vehicle in which he was riding one rifle shot which struck one passenger in another vehicle, the defendant was convicted of three offenses: aggravated battery (§ 784.045(l)(b), Fla.Stat.); possession of a firearm in the commission of a felony (§ 790.07(2), Fla.Stat.); and shooting at, within, or into an occupied vehicle (§ 790.19, Fla.Stat.).
While it is not the duty of appellate courts to search for unraised points of law, for justice to prevail under our criminal system necessitates that all participants, the lawyers and judges, assume some duty to see that the correct law is equally applied in all criminal cases!1
As to the single factual event of firing one gun one time, a defendant should not be, and under a good system of criminal law should not need to be,2 convicted of three different offenses in order for justice to be done.3
The offense of aggravated battery, as distinguished from the offense of simple battery, is directed toward the “evil” of misusing a firearm or other deadly weapon when committing a battery and serves to make a felony out of what otherwise would be but a misdemeanor. Likewise the firearm offense proscribed by section 790.-07(2), Florida Statutes, is directed against the “evil” of misusing a weapon or firearm during the commission of a felony. In substance, both offenses proscribe and punish the “same evil.”
The conviction for both offenses based on one single factual event (one act of the defendant) appears to be a serious error.4 Perhaps the defendant can obtain justice as to this detail in some post conviction proceeding as it is fundamental error for a citizen..to be confined in prison for a criminal offense for which, under the facte and law of the case, he cannot constitutionally be. convicted.5
. Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987).
. See Carawan v. State, 515 So. 2d 161, 164 (Fla.1987) ("It is presumed, however, that this legislative prerogative is not exercised by punishing the same offense under more than one statutory provision, since the legislature can achieve the same result with greater economy by merely increasing the penalty for the single underlying offense" [emphasis supplied]). See also the separate opinion in Bing v. State, 492 So. 2d 833, 836 (Fla. 5th DCA 1986).
. See the separate opinions in Gotthardt v. State, 475 So. 2d 281 (Fla. 5th DCA 1985) and Burke v. State, 475 So. 2d 252 (Fla. 5th DCA 1985), rev. denied, 484 So. 2d 10 (Fla.1986).
. In Hall v. State, 517 So. 2d 678 (Fla.1988), it was held that a defendant could not be convicted of both committing armed robbery, under section 812.13(2)(a), Florida Statutes, and the use of a firearm while committing a felony, under section 790.07(2), Florida Statutes. The conviction and punishment for both committing a robbery while carrying a firearm (§ 812.-13(2)(a), Fla.Stat.) and the use of a firearm while committing a felony (§ 790.07(2), Fla. Stat.) would mean the one underlying act or substantive offense is enhanced twice for the same reason: because a firearm was misused. Likewise, a defendant should not be convicted of both aggravated battery under section 784.-045(1)(b), Florida Statutes, which requires the use of a firearm or other deadly weapon, and the use of a firearm while committing a felony, under section 790.07(2), Florida Statutes. Battery under section 784.03, Florida Statutes, becomes the enhanced offense of aggravated battery under section 784.045(1)(b), Florida Statutes, by reason of the use of a deadly weapon. Therefore a defendant should not be convicted and punished, or his punishment enhanced, twice because of one misuse one time of a firearm. When the firearm is an essential enhancing element of the underlying offense (here aggravated battery under section 784.045(l)(b), Florida Statutes), the defendant should not also be convicted and punished under section 790.-07(2), Florida Statutes, for that same misuse of the same firearm.
. Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984), approved, 483 So. 2d 420 (Fla.1986).
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…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); Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988); Parker v. State, 482 So. 2d 576 (Fla. 5th DCA 1986). Only Royal, which was decided just before Sanders’ appeal became final, would have been available to argue the aggravated assault was necessarily included in the armed robbery…
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…orida 1988. The effect of that statutory amendment on the double jeopardy analysis and holding in Carawan has concerned some judges.1 See the specially concurring opinions in O’Brien v. State, 454 So. 2d 675 (Fla. 5th DCA 1984) and Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988) and the dissent in Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988). Compare Wright, Richardson, Cardwell, Neal (527 So. 2d 966), Willingham and Crayton, with the inconsistent holdings in Clark and Teemer. . See Clark v. S…
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Hurd v. State, 536 So. 2d 361 (Fla. 3d DCA 1988)…s a deadly weapon. See § 812.13(2)(a). Disregarding the accusatory pleadings and the proof, there is no difference between the two offenses. Both statutes proscribe and punish the same evil, Hall v. State, 517 So. 2d 678 (Fla.1988); Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988), therefore, the sentence and conviction for the lesser offense, use of a firearm in the commission of a felony, cannot stand. Gonzalez v. State, 449 So. 2d 882 (Fla. 3d DCA) (the greater offense is the one which carries the more…
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
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)
- Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)
- Burke v. State, 475 So. 2d 252 (Fla. 5th DCA 1985)
- Valentine Gotthardt v. State, 475 So. 2d 281 (Fla. 5th DCA 1985)
- Bing v. State, 492 So. 2d 833 (Fla. 5th DCA 1986)