MICHAEL S. REID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Reid appeals his convictions for possession of a short-barreled shotgun and carrying a concealed firearm, challenging whether he should have been convicted of both charges and whether the trial court properly imposed community control as a probation condition consecutive to a prison term. The court affirmed the convictions but reversed the sentencing regarding community control.
Reid's convictions for both firearm charges were proper because he knowingly possessed the gun from when Bradshaw climbed into the car and then, as a separate act, deliberately concealed it when he realized law enforcement was following. However, the trial court erred in imposing community control as a probation condition consecutive to the prison term because the guideline sentence directed either community control or incarceration, not both.
[1] A defendant may be convicted of both possession of a short-barreled shotgun and carrying a concealed firearm when the evidence shows knowing possession followed by a sepa…
[2] A trial court errs in imposing community control as a condition of probation consecutive to a prison term when the presumptive guideline sentence allows for either commun…
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“the record shows that appellant knowingly possessed the gun from the time that Bradshaw climbed into the car. Thereafter, as a separate act, appellant deliberately concealed the gun under the back seat when he became aware that the car behind him was that of a deputy sheriff.”
Establishes that possession and concealment were separate acts supporting two distinct convictions
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Join FLexlaw to unlock all legal intelligenceOn February 19, 1987, a convenience store clerk witnessed a masked man running across the store's breezeway and called police. Witnesses saw Reid and …
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PER CURIAM.
This cause is before us on appeal from a judgment and sentences for possession of a short-barreled shotgun and carrying a concealed firearm pursuant to Sections 790.221 and 790.01, Florida Statutes. Appellant argues that he should not have been convicted of both firearm charges and that the trial court erred in imposing community control as a condition of probation consecutive to the prison term.
An information charged appellant and two confederates, Bradshaw and Pennington, with conspiracy to commit robbery, possession of a short-barreled shotgun, and carrying a concealed weapon.
The facts presented to the jury showed that on February 19, 1987, a convenience store clerk saw a man wearing a ski mask run across the store’s breezeway. After the clerk called the police, another witness saw appellant and Pennington using the public telephones outside the store. The two men drove off at a high rate of speed in a 1978 Camaro Z-28. That same evening, the bartender at the lounge next to the store reported an attempted robbery outside the back door of the bar. A deputy sheriff went to the lounge and store to investigate. He broadcast for other law enforcement personnel to be on the lookout for the 1978 Camaro. Another deputy spotted the car and followed it until it stopped. Appellant and Pennington exited the car on the driver’s side and were ordered to hit the ground. Bradshaw climbed out the passenger window. Other law enforcement personnel arrived at the scene and observed a .410 shotgun with a short barrel partially hidden under the back seat.
Bradshaw testified for the State that he and the codefendants planned to rob a man in the parking lot behind the lounge. Bradshaw claims that after the plan fell through, he ran in front of the store and across the road with the gun. When appellant and Pennington stopped in the Camaro to pick up Bradshaw, Bradshaw threw the gun into the car and climbed in the passenger window. As regards the particular crimes for which he was convicted, appellant testified, admitting that the gun was in his car and that he pushed it under the seat when he realized the patrol car was behind him.
The jury found appellant guilty of the two firearm charges but not guilty of conspiracy to commit robbery. The trial court sentenced appellant to two and one-half years’ imprisonment for carrying a concealed firearm. For possession of a short-barreled shotgun, appellant received a sentence of five years’ probation, with the first two years thereof on community control as a probation condition.
Appellant argues that he should not have been convicted of possessing and of concealing a short-barreled shotgun. Carawan v. State, 515 So. 2d 161, 170 (Fla.1987). However, the record shows that appellant knowingly possessed the gun from the time that Bradshaw climbed into the car. Thereafter, as a separate act, appellant deliberately concealed the gun under the back seat when he became aware that the car behind him was that of a deputy sheriff.
We, therefore, affirm appellant’s convictions. However, the trial court erred in imposing community control as a probation condition consecutive to the prison term. Appellant’s recommended guideline sentence was community control or twelve to thirty months’ incarceration in a state prison. The trial court imposed the maximum prison term for carrying a concealed firearm and community control as a probation condition for possessing a sawed-off shotgun. Under State v. Van Kooten, 522 So. 2d 830 (Fla.1988), when the presumptive guideline sentence directs community control or incarceration, the imposition of both represents a departure requiring proper written reasons.1 The case is remanded for the trial court to vacate the imposition of community control as a condition of probation. The trial court did not give any reasons for departure initially. Thus, it may not do so on remand. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
AFFIRMED IN PART, REVERSED IN PART.
ERVIN, BOOTH and WENTWORTH, JJ., concur. . Compare Sanders v. State, 516 So. 2d 38 (Fla. ist DCA 1987).
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Cited By
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Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)…n violation of Sections 790.23, 790.001(2), and 790.221, Florida Statutes (1985), respectively. . The State contends that there is no record evidence that the convictions were for separate acts, and thus no double jeopardy issue. See Reid v. State, 531 So. 2d 211 (Fla. 1st DCA 1988). It argues that Johnson’s guilty plea to three charges, two of which referred to “shotguns,” and the third of which referred to a “rifle,” indicates that the defendant had more than one gun, and thus, his punishment was for more…
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Taylor v. State, 551 So. 2d 1250 (Fla. 1st DCA 1989)…concurring in part and dissenting in part, I believe the trial court should not be precluded, on resentencing, from departing from the guidelines sentence if the court gives valid written reasons therefor. In my view, this court in Reid v. State, 531 So. 2d 211 (Fla. 1st DCA 1988), construed too broadly the Supreme Court’s holding in Shull v. Dugger, 515 So. 2d 748 (Fla.1987). In Reid, this court said: The trial court did not give any reasons for departure initially. Thus, it may not do so on remand. Shul…1 / 2
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Sanders v. State, 516 So. 2d 38 (Fla. 1st DCA 1987)