DARRIAL M. HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darrial Hall appealed sentences imposed after remand, arguing the trial court lacked jurisdiction to resentence him while his case was pending before the Supreme Court, and that his convictions violated double jeopardy. The appellate court found merit in both arguments, vacating the conviction for possession of a firearm during a felony and remanding for resentencing.
The trial court lacked jurisdiction to resentence Hall while his case was pending before the Supreme Court. The conviction for possession of a firearm during the commission of a felony violates double jeopardy principles because it punishes Hall twice for using the firearm during the murder. The convictions for second degree murder and possession of a firearm by a felon are affirmed, but sentences are vacated and the case is remanded for resentencing.
[1] A trial court lacks jurisdiction to resentence a defendant when a notice for discretionary review has been filed with the Supreme Court, even if the Supreme Court has not…
[2] Convictions for second degree murder by use of a firearm and for possession of a firearm during a felony, when that felony is the murder, constitute double jeopardy.
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Join FLexlaw to unlock all legal intelligence“a trial court does not have jurisdiction to resentence a defendant whose case has been remanded by the district court but which is also pending before the Florida Supreme Court”
Establishes the jurisdictional bar against resentencing while discretionary review is pending
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Join FLexlaw to unlock all legal intelligenceHall was convicted of second degree murder (enhanced to a life felony under section 775.087 for use of a firearm), possession of a firearm by a felon,…
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SMITH, Chief Judge.
Appellant Hall appeals sentences imposed after this court reversed and remanded prior sentences. Appellant raises three points on appeal, two of which we find meritorious.
First, appellant argues that the trial court lacked jurisdiction to resentence him inasmuch as he was seeking review by the Supreme Court of this court’s order at the time of resentencing. Appellant also argues that his convictions for murder and possession of a firearm during a felony constitute double jeopardy. Finally, appellant argues that the reasons given for exceeding the recommended guideline range were impermissible.
As for the third point, we find no reason to consider this argument because we considered the propriety of the reasons for the guideline departure in the appellant’s previous appeal. See, Hall v. State, 510 So. 2d 979 (Fla. 1st DCA 1987).
We agree with the appellant that the trial court lacked jurisdiction to resen-tence him. In his initial appeal, the appellant argued that the reasons given for the departure from the guidelines were impermissible. We held that some of the reasons were indeed invalid, but found others to be valid. Because we could not determine whether the trial court would have imposed the same sentence absent the reasons held to be impermissible, we reversed and remanded for resentencing. The appellant filed a notice for discretionary review with the Supreme Court. After the filing of this notice but before the Supreme Court declined jurisdiction, the trial court resentenced the appellant. This was an error. In Everage v. State, 516 So. 2d 81 (Fla. 1st DCA 1987), the appellant appealed his sentence and several of the reasons given for guideline departure were found to be invalid. The sentence was accordingly reversed, and the cause was remanded for resentencing. The appellant in Everage sought discretionary review. Before the Supreme Court declined review, the appellant was resentenced. This court held that “a trial court does not have jurisdiction to resentence a defendant whose case has been remanded by the district court but which is also pending before the Florida Supreme Court.” Id. at 82. See also, Payne v. State, 493 So. 2d 1104 (Fla. 1st DCA 1986).
As noted, the facts of the instant case are identical and therefore, Everage commands that the appellant’s sentence be vacated. That the trial court lacked jurisdiction to resentence the appellant is not the only troublesome point, for two of the convictions constitute double jeopardy. The appellant was convicted of second degree murder, a violation of section 782.04, possession of a firearm by a felon, a violation of section 790.23, and possession of a firearm during a felony, a violation of section 790.07. The appellant’s conviction for murder was enhanced by operation of section 775.087 (possession or use of weapon or firearm during a felony) from a first degree felony to a life felony.
In Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988), the district court held that convictions for second degree murder by use of a firearm and for possession of a firearm during a felony when that felony was the murder constituted double jeopardy. Likewise, in McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988), this court held impermissible convictions for manslaughter and use of a weapon during the commission of a felony. See also, Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988).
There is no doubt that the appellant is being punished twice for using a firearm during the commission of a crime, and therefore, his conviction for possessing a firearm during the commission of a felony is reversed. The remaining convictions for second degree murder with a firearm and possession of a firearm by a felon are affirmed. However, since the present sentences for these offenses were rendered while the trial court lacked jurisdiction, these sentences are vacated and this cause is remanded for resentencing.
WENTWORTH and WIGGINTON, JJ., concur.
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Grantham v. State, 545 So. 2d 945 (Fla. 1st DCA 1989)…sing a firearm in the commission of a felony, in that the use of a firearm was relied on to enhance her second-degree murder conviction from a first-degree to a life felony, pursuant to Section 775.087, Florida Statutes. We agree. See Hall v. State, 530 So. 2d 1066 (Fla. 1st DCA 1988). Grantham’s conviction of use of a firearm in the commission of a felony, contrary to Section 790.07(2), Florida Statutes, is therefore reversed, and the case is remanded with directions to vacate that conviction. Because the t…
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Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988)…. 2d 1238 (Fla. 1st DCA 1988); State v. Crumley, 512 So. 2d 183 (Fla.1987); Neal v. State, 531 So. 2d 410 (Fla. 1st DCA 1988); Monsanto v. State, 530 So. 2d 952 (Fla. 3d DCA 1988); Hartley v. State, 531 So. 2d 990 (Fla. 1st DCA 1988); Hall v. State, 530 So. 2d 1066 (Fla. 1st DCA 1988); Rose v. State, 530 So. 2d 401 (Fla. 1st DCA 1988); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1987); Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1988); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); Taylor v. State,…
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Kudelka v. State, 545 So. 2d 884 (Fla. 2d DCA 1988)…FRANK, Judge. The appellant, acting pro se, has filed a motion for stay of his resentencing hearing relying on Everage v. State, 516 So. 2d 81 (Fla. 1st DCA 1987), Hall v. State, 530 So. 2d 1066 (Fla. 1st DCA 1988), and McKinnon v. State, 530 So. 2d 1101 (Fla. 1st DCA 1988). The preceding authorities, all arising in the First District, hold that an automatic stay of resentencing occurs upon the filing of a petition for discretionary review…
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)
- Health Care & Ret. Corp. OF Am. v. Dep't of Health & Rehabilitative Servs., 526 So. 2d 743 (Fla. 1st DCA 1988)
- Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988)
- Payne v. State, 493 So. 2d 1104 (Fla. 1st DCA 1986)
- Everage v. State, 516 So. 2d 81 (Fla. 1st DCA 1987)
- Young Indus., Inc. v. Union Underwear Co., 510 So. 2d 979 (Fla. 3d DCA 1987)
- Darrial M. Hall v. State, 510 So. 2d 979 (Fla. 1st DCA 1987)