JAMES C. CRAYTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Crayton was convicted after jury trial of aggravated assault with a firearm and two related shooting offenses. The appellate court found that while the trial court erred in allowing prosecutorial comments outside the record, the error was harmless. The court also held that Crayton could not be convicted under both the shooting-into-occupied-vehicle statute and the use-of-firearm statute based on a single shooting, as they require identical proof.
The trial court erred in allowing the prosecutor to comment on facts outside the record, but the error was harmless beyond a reasonable doubt and does not warrant a new trial. Additionally, the conviction for use of a firearm under section 790.07(2) must be reversed because the two statutes require identical proof and the legislature did not intend to allow separate punishment for the same criminal conduct under different statutes.
[1] A prosecutor's comment on a matter outside the record during closing argument, while error, does not require a new trial if the comment did not affect the defendant's con…
[2] A defendant cannot be convicted of both shooting into an occupied vehicle and using a firearm in the commission of that felony when the same elements are required to prov…
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Join FLexlaw to unlock all legal intelligence“It is equally clear, however, beyond any reasonable doubt, that the comment did not affect the defendant's convictions, which were inevitable in light of the trial testimony.”
Establishes that prosecutorial error regarding out-of-record facts was harmless because the convictions were inevitable based on trial testimony.
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Join FLexlaw to unlock all legal intelligenceCrayton fired one shot into an occupied vehicle. He was convicted after jury trial of aggravated assault with a firearm, use of a firearm in commissio…
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COBB, Judge.
The appellant, James Crayton, was convicted after jury trial of aggravated assault with a firearm, use of a firearm in commission of a felony (shooting into an occupied vehicle), and shooting into an occupied vehicle. On appeal he argues that (1) the trial court erred in allowing the prosecution to state facts not in evidence during closing argument, and (2) he cannot be convicted for both shooting into an occupied vehicle and use of a firearm to do it.
In regard to the first point it is clear that the trial court erred in allowing the prosecutor to comment on a matter outside the record. It is equally clear, however, beyond any reasonable doubt, that the comment did not affect the defendant’s convictions, which were inevitable in light of the trial testimony. See Long v. State, 494 So. 2d 213 (Fla.1986); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Therefore, we reject appellant’s claim of entitlement to a new trial on this ground.
The appellant also contends that he cannot be convicted under both section 790.19, Florida Statutes (1987) (shooting into an occupied vehicle) and section 790.07(2), Florida Statutes (1987) (use of a firearm during commission of the felony of shooting into an occupied vehicle) based upon evidence that he fired one time into an occupied vehicle.
We agree. Section 775.021(4), Florida Statutes (1987) provides:
(4) Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes 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.
The offense of use of a firearm to shoot into an occupied vehicle1 requires no proof different from that required in regard to the offense under section 790.19 of shooting into an occupied vehicle. In the absence of express legislative authorization to the contrary, we assume the legislature did not intend to punish the same offense under different statutes. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Therefore, we affirm the conviction for shooting into an occupied vehicle per section 790.19 and reverse the conviction for the ancillary offense of use of a firearm per section 790.07(2).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR RESEN-TENCING.
DAUKSCH and GOSHORN, JJ., concur. . It should be noted that there was no proof below, nor contention on appeal, that Crayton unlawfully displayed or threatened to use a firearm, or carried a concealed firearm, while committing the felony — only that he used one to shoot at an occupied vehicle.
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Citator
Cited By (12 total)
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Alphonse Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989)…ingly sustained. ONE COUNT OF USE OF A FIREARM IN THE COMMISSION OF A FELONY This charge is necessarily subsumed in each of the other seven convictions and is reversed. See Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989); Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989). See also Hall v. State, 517 So. 2d 678 (Fla.1988); Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989); Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988); Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988); and Wright v. Stat…
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Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991)…2d 1366 (Fla.1989). See also, Hall v. State, 517 So. 2d 678 (Fla.1988); Hancock v. State, 559 So. 2d 1307 (Fla. 5th DCA 1990); Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989); Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989); Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989); Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989); Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988); Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988); and Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). . See…
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…Article 1, Section 9, of the Constitution of the State of Florida; Hall v. State, 517 So. 2d 678 (Fla.1988); Carawan v. State, 515 So. 2d 161 (Fla.1987) and the following district court of appeal cases, which are directly in point: Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989); Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989); Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988); Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988); Richardson v. State, 523 So. 2d 746 (Fla. 5th DCA 1988); Wright…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Missouri v. Hunter, 459 U.S. 359 (U.S. 1983)
- Ball v. United States, 470 U.S. 856 (U.S. 1985)
- Long v. State, 494 So. 2d 213 (Fla. 1986)