ROQUE J. TORRES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant's convictions for attempted second-degree murder affirmed, but convictions for unlawful firearm possession and shooting into an occupied building vacated as lesser-included offenses; sentence affirmed as within guidelines.
Convictions for unlawful possession of a firearm while engaged in a criminal offense and shooting into an occupied building must be vacated as they are lesser-included offenses of the attempted murder convictions.
[1] A defendant cannot be separately convicted and punished for unlawful firearm possession and shooting into an occupied building when these offenses are lesser-included off…
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of two counts of attempted second-degree murder by discharging a firearm, unlawful possession of a firearm while engaged in cr…
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PER CURIAM.
The defendant was convicted of two counts of attempted second-degree murder by discharging a firearm; the unlawful possession of a firearm while engaged in a criminal offense, namely, the attempted murders; and shooting into an occupied building, that is, discharging the firearm during the attempted murders. He was sentenced within the guidelines to terms of twenty-two years’ imprisonment on the attempted murder counts and fifteen years’ imprisonment on the remaining counts, all sentences to run concurrently.
None of the errors asserted by the defendant warrants a new trial, and the evidence, viewed most favorably to the State, amply supports the jury’s guilty verdicts. We must, however, vacate the judgments of conviction on Count III for unlawful possession of a firearm while engaged in a criminal offense and Count IV for shooting into an occupied building. See Carawan v. State, 515 So. 2d 161 (Fla.1987); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); Wilcher v. State, 524 So. 2d 1105 (Fla. 3d DCA 1988); McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988) (Cowart, J., concurring).
Because only nineteen of the total 279 points on the sentencing guideline scoresheet were attributed to Counts III and IV (as “additional offenses at conviction”), the defendant’s point score, even after recalculation, still places him within the recommended range of seventeen to twenty-two years, and there is thus no need for resentencing.
Affirmed as to Counts I and II; reversed as to Counts III and IV, with instructions to vacate the convictions on these counts.
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…3d DCA 1988); Anderson v. State, 530 So. 2d 1104 [*118] (Fla. 3d DCA 1988); Monsanto v. State, 530 So. 2d 952 (Fla. 3d DCA 1988); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988); Evans v. State, 528 So. 2d 125 (Fla. 3d DCA 1988); Torres v. State, 527 So. 2d 272 (Fla. 3d DCA 1988), rev. denied, 536 So. 2d 246 (Fla.1988); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988); Brown v. State, 529 So. 2d 1247 (Fla. 4th DCA 1988); Prescott v. State, 529 So. 2d 302 (Fla. 4th DCA 1988); Sapp v. State, 522 So. 2d…
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State v. Reddick, 568 So. 2d 902 (Fla. 1990)…nto a house occupied by six persons. One shot killed one occupant, and one shot wounded another. He was found guilty as charged. On appeal, however, the Third District Court of Appeal held that under Carawan and its own decision in Torres v. State, 527 So. 2d 272 (Fla. 3d DCA), review denied, 536 So. 2d 246 (Fla.1988), the convictions for shooting into an occupied dwelling and possession of a firearm in the commission of a felony must be vacated. The court acknowledged conflict with Kelly in which the Fifth…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…o. 2d 991 (Fla.1989); Anderson v. State, 530 So. 2d 1104 (Fla. 3d DCA 1988); Monsanto v. State, 530 So. 2d 952 (Fla. 3d DCA 1988); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988); Evans v. State, 528 So. 2d 125 (Fla. 3d DCA 1988); Torres v. State, 527 So. 2d 272 (Fla. 3d DCA 1988), rev. denied, 536 So. 2d 246 (Fla.1988); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988). FOURTH DISTRICT COURT OF APPEAL: Higgins v. State, 545 So. 2d 973 (Fla. 4th DCA 1989); Williams v. State, 546 So. 2d 1120 (Fla. 4th…
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)
- Webster F. McKINNON v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988)
- Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988)
- Health Care & Ret. Corp. OF Am. v. Dep't of Health & Rehabilitative Servs., 526 So. 2d 743 (Fla. 1st DCA 1988)
- Earsley Wilcher v. State, 524 So. 2d 1105 (Fla. 3d DCA 1988)