JOHNNY ELLISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot be convicted of both aggravated assault with a firearm and use of a firearm during a felony because the offenses contain identical elements of proof.
Ellison was convicted of aggravated assault with a firearm, use of a firearm during a felony, and possession of a firearm by a convicted felon. He app…
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PER CURIAM.
Ellison appeals his conviction and sentence for aggravated assault with a firearm, use of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He contends that he was improperly convicted of both aggravated assault with a firearm and use or display of a firearm during the commission of a felony. We agree and reverse.
Criminal offenses are separate offenses only if each offense requires proof of an element that the other does not. § 775.021(4), Fla.Stat. Aggravated assault with a firearm, §§ 784.021 and 775.-087(2)(a), Fla.Stat. (1987), requires the same elements of proof required in proof of use or display of a firearm during the commission of a felony. § 790.07(2), Fla. Stat. (1987). The double jeopardy prohibition precludes Ellison from being punished twice for the same offense. Therefore, he can be convicted and sentenced for either one of the offenses but not both.
The state incorrectly contends that § 775.087 mandates that the third degree felony of aggravated assault with a firearm be reclassified as a second degree felony. Section 775.087 requires reclassification only if the use of a firearm or weapon is not an essential element of the felony charged. Use of a firearm is an essential element of aggravated assault with a firearm.
Reversed and remanded for resentencing.
WENTWORTH, THOMPSON and WIGGINTON, JJ., concur.
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Vance v. State, 545 So. 2d 398 (Fla. 1st DCA 1989)…ssault, and for aggravated assault and use of a firearm during the commission of a felony, all arising out of a single act, was impermissible under Carawan v. State, 515 So. 2d 161 (Fla.1987).1 We agree. This court recently held in Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989) that a defendant may not be convicted of both aggravated assault with a firearm and use or display of a firearm during the commission of a felony when both offenses arise out of the same act. Dual convictions are also improper fo…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…45 (Fla. 1st DCA 1989); Vance v. State, 545 So. 2d 398 (Fla. 1st DCA 1989); Kelley v. State, 543 So. 2d 286 (Fla. 1st DCA 1989); Payne v. State, 538 So. 2d 1302 (Fla. 1st DCA 1989), jurisdiction accepted, 544 So. 2d 201 (Fla.1989); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989), rehearing denied, 544 So. 2d 266 (Fla. 1st DCA 1989); Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988), rev. denied, 541 So. 2d 1173 (Fla.1989); Hartley v. State, 531 So. 2d 9…
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Patterson v. State, 693 So. 2d 74 (Fla. 1st DCA 1997)…m under section 784.021(l)(a) cannot be reclassified to a second-degree felony pursuant to section 775.087(1) because use of a firearm is an essential element of that offense. Harrelson v. State, 624 So. 2d 828 (Fla. 1st DCA 1993); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988). Because the trial court did not attach portions of the record to the order denying relief, however, we cannot make this determination. Accordingly, we reverse the trial court…
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