CARL E. HURD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Carl Hurd was convicted of both aggravated battery with a deadly weapon and use of a firearm while committing a felony. The court reversed, finding these convictions constitute impermissible double punishment for the same conduct under the Blockburger test.
The convictions and sentences for both offenses cannot stand because they constitute multiple punishment for the same conduct. Under the Blockburger test, the two offenses are not separate because each does not require proof of an element the other does not. The conviction and sentence for the lesser offense (use of a firearm) must be vacated.
[1] Convictions and sentences for both aggravated battery by use of a deadly weapon and use of a firearm while committing a felony constitute multiple punishments for the sam…
[2] Under the Blockburger test, offenses are separate if each requires proof of an element that the other does not, without regard to the accusatory pleading or the proof add…
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“For the purpose of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.”
Statement of the Blockburger test as codified in Florida law, which governs whether multiple convictions arise from separate offenses or constitute impermissible double punishment.
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Join FLexlaw to unlock all legal intelligenceHurd was charged with aggravated battery by use of a revolver or pistol and, in a separate count, use of a firearm while committing that felony. He re…
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FERGUSON, Judge.
Appellant, Carl E. Hurd, was convicted and sentenced on an information charging aggravated battery by use of a deadly weapon, “to wit: a revolver or pistol” in violation of section 784.045(l)(b). In a separate count of the information he was charged with the use of a firearm while committing a felony, “to wit: aggravated battery,” in violation of section 790.07(2). The concurrent eight-year sentences imposed included a mandatory three-year minimum incarceration for use of a firearm in committing the aggravated battery offense. Relying on Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988), the appellant argues that the conviction and sentence for both offenses constitutes multiple punishment for the same conduct. We agree.
The Florida supreme court in Borges v. State, 415 So. 2d 1265 (Fla.1982), adopted the Blockburger1 double jeopardy test, codified in section 775.021(4), Florida Statutes (1987), for determining whether two or more incidents arising out of a single criminal transaction are separate punishable offenses:
For the purpose of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
Under a Blockburger analysis, Hurd’s two offenses are not separate. The elements of aggravated battery are (1) the commission or attempted commission of a battery, (2) by use of a deadly weapon. The weapons statute, 790.07, is styled “Persons engaged in criminal offenses, having weapons.” Subsection (2), the relevant provision, requires proof that the accused (1) committed a felony, (2) using a firearm. Aggravated battery is a felony. See § 784.045(2). A firearm is a deadly weapon. See § 812.13(2)(a). Disregarding the accusatory pleadings and the proof, there is no difference between the two offenses. Both statutes proscribe and punish the same evil, Hall v. State, 517 So. 2d 678 (Fla.1988); Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988), therefore, the sentence and conviction for the lesser offense, use of a firearm in the commission of a felony, cannot stand. Gonzalez v. State, 449 So. 2d 882 (Fla. 3d DCA) (the greater offense is the one which carries the more severe penalty), rev. denied, 458 So. 2d 274 (Fla.1984).2
Reversed and remanded for proceedings consistent with this opinion.
. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
. Aggravated battery is a second-degree felony punishable by a term of imprisonment not exceeding fifteen years. Use of a firearm in the commission of a felony is a third-degree felony punishable by a maximum of five years of imprisonment.
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State v. Murray, 644 So. 2d 533 (Fla. 4th DCA 1994)…"same elements” test was codified in Florida under section 775.021(4), Florida Statutes (1977). See also Borges v. State, 415 So. 2d 1265 (Fla.1982). It essentially remains unchanged today. See § 775.021(4), Fla.Stat. (1993); see also Hurd v. State, 536 So. 2d 361 (Fla. 3d DCA 1988). . Even if we did not reverse on the authority of Dixon, we would still be inclined to reverse based on State v. Coupal, 626 So. 2d 1013 (Fla. 2d DCA 1993) and State v. Knowles, 625 So. 2d 88 (Fla. 5th DCA 1993). In both cases ou…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Borges v. State, 415 So. 2d 1265 (Fla. 1982)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Gonzalez v. State, 449 So. 2d 882 (Fla. 3d DCA 1984)
- Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988)
- Burton v. State, 522 So. 2d 88 (Fla. 5th DCA 1988)