ERIC DWAYNE BRADSHAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Dwayne Bradshaw appeals his convictions for second degree murder, possession of a firearm during felony commission, and attempted first degree murder. The court reverses in part, finding that the firearm possession charge became a lesser included offense after application of the firearms enhancement statute and thus cannot support a separate conviction.
Bradshaw's conviction for possession of a firearm during commission of a felony must be vacated because, once the second degree murder and attempted second degree murder convictions are enhanced under the firearms enhancement statute, the firearm possession charge becomes a lesser included offense and cannot support a separate conviction. The judgment must be corrected to reflect attempted second degree murder rather than attempted first degree murder on Count 3.
[1] A conviction for possession of a firearm during the commission of a felony may be vacated when it is a lesser included offense of enhanced murder or attempted murder conv…
[2] A judgment must accurately reflect the jury's verdicts, and any variance constitutes an error requiring correction.
Previewing 2 of 4 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“Upon the enhancement of the murder and attempted murder convictions, the charge of possession of a firearm during commission of a felony became a lesser included offense, so that appellant could not properly be convicted of the firearms possession charge in addition to the murder and attempted murder charges.”
Establishes the core legal principle that the firearm possession charge becomes a lesser included offense after enhancement, prohibiting a separate conviction.
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Join FLexlaw to unlock all legal intelligenceBradshaw was tried on charges of first degree premeditated murder (Count 1), possession of a firearm during commission of a felony (Count 2), and atte…
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THOMPSON, Judge.
Bradshaw appeals his judgment and sentence for second degree murder, possession of a firearm during the commission of a felony, and attempted first degree murder. We reverse in part and remand.
Bradshaw was tried on an information charging him in Count 1 with first degree premeditated murder, in Count 2 with possession of a firearm during commission of a felony, and in Count 3 with attempted first degree murder. All three charges arose out of a single criminal transaction.
The jury found Bradshaw guilty as to Count 1, of second degree murder, as to Count 2, of possession of a firearm during commission of a felony, and as to Count 3, of attempted second degree murder. Bradshaw’s judgment is at variance with the jury’s verdicts, in that it finds him guilty of second degree murder as to Count 1, guilty of possession of a firearm during commission of a felony as to Count 2, and guilty of attempted first degree murder as to Count 3. Pursuant to the firearms enhancement statute, § 775.087, Fla.Stat., appellant’s conviction for second degree murder was enhanced from a first degree felony to a life felony. The judgment reflects application of the firearms enhancement statute to the conviction on Count 3, as well, so that upon correction of the above-noted error in the judgment it should show enhancement of the attempted second degree murder conviction from a second degree felony to a first degree felony. Upon the enhancement of the murder and attempted murder convictions, the charge of possession of a firearm during commission of a felony became a lesser included offense, so that appellant could not properly be convicted of the firearms possession charge in addition to the murder and attempted murder charges. Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988).
Accordingly, we vacate Bradshaw’s conviction and sentence for possession of a firearm during the commission of a felony, and remand for resentencing. Upon remand the court shall correct its judgment to reflect a conviction on Count 3 of attempted second degree murder rather than attempted first degree murder. REVERSED and REMANDED.
ERVIN and WIGGINTON, JJ., concur.
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Kelley v. State, 543 So. 2d 286 (Fla. 1st DCA 1989)…d offense. Under these circumstances, a conviction of possession of a firearm during commission of a felony in addition to manslaughter with a firearm would be precluded. See McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988); Bradshaw v. State, 528 So. 2d 473 (Fla. 1st DCA 1988). The judgment is reversed and the cause remanded for new trial. ERVIN and ZEHMER, JJ., concur.…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…1127 (Fla. 1st DCA 1988); Middleton v. State, 529 So. 2d 357 (Fla. 1st DCA 1988), cause dismissed, 534 So. 2d 401 (Fla.1988); Payne v. State, 528 So. 2d 546 (Fla. 1st DCA 1988); Larry v. State, 527 So. 2d 883 (Fla. 1st DCA 1988); Bradshaw v. State, 528 So. 2d 473 (Fla. 1st DCA 1988); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); Cooper v. State, 524 So. 2d 738 (Fla. 1st DCA 1988); McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988), quashed, 540 So. 2d 111 (Fla.1989). SECOND DISTRICT COURT OF AP…
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Gross v. State, 138 So. 3d 590 (Fla. 5th DCA 2014)…irearm in committing the crimes, single act of using that same firearm in the commission of those felonies as basis of separate sentence and conviction for use of firearm while committing a felony violated double jeopardy clause); Bradshaw v. State, 528 So. 2d 473 (Fla. 1st DCA 1988) (upon enhancement of murder and attempted murder convictions based on ap [*592] plication of firearms enhancement statute, charge of possession of firearm during commission of felony became lesser-inelud-ed offense and thus, defe…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Webster F. McKINNON v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988)
- Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988)