RAFAEL ERODIS PEREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rafael Erodis Perez was convicted of attempted first-degree murder, armed robbery, and display of a firearm. The court reversed the display of firearm conviction as impermissible dual punishment because the firearm use underlying that conviction was the same act that elevated the severity of his murder and robbery convictions.
The court held that the display of firearm conviction must be reversed because it constitutes impermissible dual punishment for the same act. The firearm use that grounded the display conviction was identical to the use that elevated the attempted murder and robbery convictions to higher felonies, making a separate conviction for display of the firearm prohibited cumulative punishment.
[1] A conviction for displaying a firearm during the commission of a felony is impermissible when it arises from the same act as a conviction for attempted murder or robbery,…
[2] Where a defendant's use of a firearm leads to the enhancement of convictions for attempted murder and robbery, a separate conviction for displaying a firearm during the c…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where the display of a firearm arises out of a single act, the imposition of convictions for both robbery with a firearm and display of a firearm during a criminal offense results in impermissible dual punishment”
Establishes the core legal principle that display of firearm convictions cannot be imposed alongside other offenses that are themselves enhanced by the firearm use
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Join FLexlaw to unlock all legal intelligencePerez entered a gas station, pointed a handgun at the victim, and demanded cash. When the victim began to walk away, Perez told him to stop or he woul…
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BARKDULL, Judge.
The appellant was convicted of three offenses: attempted first-degree murder with a firearm (count one), armed robbery with a firearm (count two), and display of a firearm during the commission of the attempted first-degree murder or armed robbery (count three).
He received two, twenty-year concurrent prison terms on counts one and two, and a concurrent fifteen-year prison term on count three. Because his display of the firearm arose out of the same act upon which the attempted murder and robbery convictions were based, the conviction and sentence imposed for the third count was error. In Hall v. State, 517 So. 2d 678 (Fla.1988), the Supreme Court, in accordance with Carawan v. State, 515 So. 2d 161 (Fla.1987), held that where the display of a firearm arises out of a single act, the imposition of convictions for both robbery with a firearm and display of a firearm during a criminal offense results in impermissible dual punishment. Following Hall, the First District Court of Appeal in Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988) held that where a defendant was convicted of two counts of attempted first-degree murder, which offenses were reclassified to life felonies because of the defendant’s display of a firearm, he could not also be convicted of use of a firearm during the commission of a felony since the latter conviction comprised dual punishment for the same act.1
The holdings of Hall and its progeny clearly apply to the instant case.
The facts established that the defendant entered a gas station, pointed a handgun at the victim and demanded cash. As the victim began to walk away and the defendant told him to stop or he would shoot, the victim started to run, and the defendant fired one shot and then fled. Based upon the foregoing, the defendant was convicted of both attempted armed first-degree murder and armed robbery. Because of the defendant’s use of the firearm, the attempted first-degree murder conviction was reclassified to a life felony pursuant to Section 775.087(1)(a), Florida Statutes (1985).
Likewise, because of his use of the firearm, the defendant’s robbery conviction was elevated to a first-degree felony punishable by life imprisonment. The defendant’s additional conviction for display of a firearm during a felony was based upon his use of the same firearm during the attempted murder and/or robbery. Since the display of a firearm conviction was based upon the same act of using the weapon that was involved in both the attempted first-degree murder and robbery, and the two latter convictions were enhanced because of the use of the firearm, the imposition of a conviction and sentence for display of the firearm resulted in prohibitive cumulative punishment for the same act. Hall, supra; Burgess, supra. We therefore reverse this conviction, and sentence2 with directions to strike same from the judgment and sentence.
Reversed and remanded with directions.
. Accord, Cooper v. State, 524 So. 2d 738 (Fla. 1st DCA 1988) (robbery with a deadly weapon and display of a weapon during a felony); McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988) (manslaughter, reclassified based on display of a firearm, and use of a firearm during felony); Hogan v. State, — So. 2d -, 13 F.L.W. 960 (Fla. 1st DCA April 7, 1988) (armed robbery and use of a firearm during felony); Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988) (armed robbery and possession of a firearm during felony).
. Reversal of the display of the firearm conviction and sentence will not affect the guidelines score computation.
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Cited By (16 total)
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Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)…the firearm. Upon this enhancement Cleveland was punished for all the elements contained in section 790.07(2) and appropriately sentenced. Although such an enhancement was properly recognized by the Third District Court of Appeal in Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988), as a material factor in deciding whether there has been improper cumulative punishment for the same act, it was apparently overlooked in this case. We hold that when a robbery conviction is enhanced because of the use of a firea…
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…d 676 (Fla. 3d DCA 1992); Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991); Goodman v. State, 567 So. 2d 37 (Fla. 3d DCA 1990); Graham v. State, 559 So. 2d 410 (Fla. 2d DCA 1990); Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988); McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988). . Cave v. State, 613 So. 2d 454 (Fla.1993); Taylor v. State, 608 So. 2d 804 (Fla.1992). . See Bundy v. State, 538 So…
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…. 2d DCA 1988); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988); Hurd v. State, 536 So. 2d 361 (Fla. 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…
Previewing 3 of 16 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)
- Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988)
- Webster F. McKINNON v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988)
- Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988)
- Jeanette (Taylor) Phillips v. C.E. Taylor, 524 So. 2d 738 (Fla. 1st DCA 1988)