PATRICK TEEMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED.
SHARP, C.J., and COBB, J., concur.
COWART, J., dissents with opinion.
COWART, Judge,
dissenting.
The defendant pulled a concealed firearm and shot a victim twice in the back, killing him, as a result of which he was convicted of the offense of manslaughter (§ 782.07, Fla.Stat.); the offense of use of a firearm during the commission of a felony (§ 790.-07(2), Fla.Stat.); and the offense of carry ing a concealed firearm (§ 790.01(2), Fla. Stat.).
In light of Hall v. State, 517 So. 2d 678 (Fla.1988); McKinnon v. State, 523 So. 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, 391 So. 2d 788 (Fla. 1st DCA 1980), and Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988), the conviction of use of a firearm during the commission of the manslaughter should be reversed.
As to the basic double jeopardy problem involved in convicting for both the necessary underlying felony and the ancillary firearm offense proscribed by section 790.-07(2), Florida Stautes, see the dissent in Baker v. State, 425 So. 2d 36, 62 n. 46 (Fla. 5th DCA 1982) and the specially concurring opinion in O’Brien v. State, 454 So. 2d 675 (Fla. 5th DCA 1984) which was concerned with State v. Gibson, 452 So. 2d 553 (Fla.1984). As recognized by Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988), Hall, supra, overruled State v. Gibson, supra.
The answer to the feeling that the defendant would receive no punishment for the use of a firearm is that the trial court should, under section 775.087(l)(b), Florida Statutes, reclassify the manslaughter offense (a second degree felony) to a first degree felony, and enhance his sentence accordingly rather than convict and sentence on the possession of a firearm offense. See O’Brien, McKinnon and Hartley.
Also, carrying a concealed firearm, a separate offense under section 790.01(2), Florida Statutes, while committing a felony, is, as charged in this case, one of the ways of violating section 790.07(2), Florida Statutes. As to one factual event, the defendant cannot be convicted of both offenses.
Chap. 88-131, sec. 7 (Florida Session Law Reporter July 4, 1988 at 573) amending a part of section 775.021(4), Florida Statutes (purportedly to eliminate one of the rational bases for the opinion in Carawan v. State, 515 So. 2d 161 (Fla.1987)) cannot, and does not, abolish the double jeopardy clauses of the state and federal constitutions nor the case law construing the meaning and application of those constitutional provisions.
Furthermore, that statutory amendment expressly excepts from its interpretation of section 775.021(1), Florida Statutes, “[ojffenses which require identical elements of proof” and “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense,” which exceptions recognize the application of double jeopardy concepts to the offenses in this case.
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Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)…a way of possessing a gun likely to lead to its improper use, and a type of gun that is particularly dangerous and used principally for crime — we reject the defendant’s claim that his double jeopardy rights have been violated. Cf. Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988) (affirming convictions for carrying a concealed firearm, manslaughter, and use of a firearm during the commission of a felony). III. We briefly dispose of Johnson’s other claim. We reverse the sentences imposed and remand for r…
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…la.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 1006 (Fla. 4th DCA 1988). Contra, Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988); Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988). See also Bogard v. State, 451 So. 2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So. 2d 677 (Fla. 4th DCA 1984) and Jackson v. State, 436 So. 2d 1101 (Fla. 4th DCA 1983)…1 / 3
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…will not be eliminated or simplified by section 775.-021(4)(b), Florida Statutes (1988) because, as explained later in the text of this separate opinion, of exceptions 1. and 3. in that statute. See note 5 herein. . But see contra: Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988); Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988). . But see: Harper v. State, 537 So. 2d 1131 (Fla. 1st DCA 1989). . The substantive analysis of the relationship between certain offenses made by Justice Thor-nal in Brown v.…
Authorities Cited (18 total)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- State v. Gibson, 452 So. 2d 553 (Fla. 1984)
- Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)
- Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988)
- O'Brien v. State, 454 So. 2d 675 (Fla. 5th DCA 1984)
- Webster F. McKINNON v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988)
- Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988)
- Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988)
- State v. Crumley, 512 So. 2d 183 (Fla. 1987)