EARSLEY WILCHER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed Wilcher's conviction for shooting a deadly missile into an occupied vehicle but reversed his conviction for discharging a firearm in public, holding that both statutes prohibit the same offense under double jeopardy principles. The court also reversed the addition of victim injury points to the sentencing scoresheet and ordered correction of the written sentence to conform to what was orally pronounced.
Discharging a firearm in public and shooting a deadly missile into an occupied vehicle constitute the same offense under double jeopardy principles, so the conviction for the lesser offense must be vacated. The prosecutor's comment regarding witness obligation need not be addressed given the overwhelming evidence of guilt. Victim injury points cannot be added to the scoresheet when injury is not an element of the crime, and the written sentence must be corrected to conform to the orally pronounced sentence.
[1] Discharging a firearm in public and shooting a deadly missile into an occupied vehicle constitute the same offense for double jeopardy purposes when both statutes are aim…
[2] A conviction and sentence for a lesser offense must be vacated when it is the same offense as a greater offense for which the defendant is also convicted and sentenced, d…
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Join FLexlaw to unlock all legal intelligence“Under the rationale of Carawan v. State, 515 So.2d 161 (Fla.1987), discharging a firearm in public, section 790.15, Florida Statutes (1987), is the same offense as shooting a deadly missile into an occupied vehicle, section 790.19, Florida Statutes (1987).”
Establishes that the two offenses at issue are legally identical for double jeopardy purposes
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Join FLexlaw to unlock all legal intelligenceWilcher, parked in a school zone, called out an offensive name to a woman driving a van. The woman stopped the van at her male companion's urging. Aft…
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FERGUSON, Judge.
Under the rationale of Carawan v. State, 515 So. 2d 161 (Fla.1987), discharging a firearm in public, section 790.15, Florida Statutes (1987), is the same offense as shooting a deadly missile into an occupied vehicle, section 790.19, Florida Statutes (1987). As in Carawan the two statutes were enacted to remedy the same evil. Because double jeopardy principles prohibit multiple punishment for the same offense, the conviction and sentence for the lesser offense must be vacated.
Wilcher contends that he is entitled to a new trial in any event because the prosecutor improperly told the jury that he had an obligation to call a known favorable witness. One of three arguments made by the State in response to Wilcher’s contention is that any error was harmless.
The victim was the driver of a van which was also occupied by her male friend. As she drove by, Wilcher, who was parked in a school zone, called her an offensive name. At the urging of her male friend the victim stopped the van. The male companion got out of the van, and a verbal exchange between the two men ensued. The male friend returned to the van and the couple drove away. As they left, the victim saw the defendant point a shotgun in the direction of her vehicle. She then felt the impact of shotgun pellets which caused slight injury to the back of her head. Although he argues that the prosecutor's comment was not harmless, Wilcher is unable to present a theory from the undisputed facts which is reasonably consistent with innocence and inconsistent with guilt. In light of the overwhelming evidence of guilt we need not decide whether the comment was improper and, if so, whether the error was preserved for review.
Two other points are conceded by the State: (1) victim injury points cannot be added to the scoresheet if injury is not an element of the crime, Florida Rule of Criminal Procedure 3.701(d)(7); Camerron v. State, 508 So. 2d 570 (Fla. 3d DCA 1987), and (2) the written sentence does not conform to the sentence announced in court and should be corrected on remand, Toombs v. State, 404 So. 2d 766 (Fla. 3d DCA 1981), review denied, 412 So. 2d 471 (Fla.1982).
The conviction and sentence for shooting a deadly missile into an occupied vehicle is affirmed; the conviction and sentence for discharging a firearm in public is reversed; the addition of victim injury points to the guideline scoresheet and the written sentence, to the extent the sentence varies from that which was orally pronounced, are reversed. On remand the court must impose a sentence which does not exceed the guideline range.
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- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Toombs v. State, 404 So. 2d 766 (Fla. 3d DCA 1981)
- McMILLAN v. Rogers, 508 So. 2d 570 (Fla. 2d DCA 1987)