DOMINGO LAZARO SIMMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Domingo Lazaro Simms appealed his convictions for attempted armed robbery with a firearm and possession of a short-barreled shotgun, arguing the offenses arose from the same act and thus constituted impermissible double convictions. The Florida District Court of Appeal affirmed, holding that the offenses contain distinct elements and are aimed at different evils, making double conviction permissible.
The court affirmed the convictions and sentences, holding that double conviction is permissible because: (a) both offenses contain an element not present in the other, and (b) the offenses are not aimed at the same evil. The statute prohibiting possession of a short-barreled shotgun targets possession of that specific dangerous firearm, while attempted armed robbery statutes target possession of any firearm during robbery.
[1] Convictions and sentences for attempted armed robbery with a firearm and possession of a short-barreled shotgun are permissible when each offense contains an element not…
[2] The statute prohibiting unlawful possession of a short-barreled shotgun is aimed at the possession of a specific type of dangerous firearm.
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“both of the above-stated offenses admittedly contain an element not present in the other, and (b) the offenses are not aimed at the same evil”
The court's primary rationale for permitting double conviction under the Carawan doctrine
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Join FLexlaw to unlock all legal intelligenceDefendant Simms was convicted of attempted armed robbery with a firearm and possession of a short-barreled shotgun. These convictions and sentences we…
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PER CURIAM.
This is an appeal by the defendant Domingo Lazaro Simms from separate convictions and sentences for attempted armed robbery with a firearm and possession of a short-barreled shotgun. The sole point on appeal is that the trial court erred in convicting and sentencing the defendant for these two offenses because they arose from the same act and consequently such double convictions are barred based on the legal reasoning of Carawan v. State, 515 So. 2d 161 (Fla.1987).
We disagree and affirm because (a) both of the above-stated offenses admittedly contain an element not present in the other, and (b) the offenses are not aimed at the same evil. The statute prohibiting unlawful possession of a short-barreled shotgun [§ 790.221, Fla.Stat. (1987) ] is aimed at the possession of a certain type of particularly dangerous firearm, namely, a short-barreled shotgun, Rinzler v. Carson, 262 So. 2d 661, 665 (Fla.1972); see Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988); the attempted armed robbery statutes [§§ 812.13(2)(a), 777.04, Fla.Stat. (1987)], on the other hand, are not exclusively aimed at possession of such a firearm, but are instead aimed at the possession of any firearm while attempting a robbery. This being so, Hall v. State, 517 So. 2d 678 (Fla.1988), is inapplicable because the two crimes which the Court said could not stand together were armed robbery with a firearm and carrying a firearm while committing a felony, wherein the use of any type of firearm was a sufficient showing for a conviction under both statutes. This is not true in the instant case, and, consequently, the convictions and sentences for the above offenses are, in all respects,
AFFIRMED.
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Citator
Cited By
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Emmons v. State, 546 So. 2d 69 (Fla. 2d DCA 1989)…that the legislature intended dual convictions. Carawan v. State, 515 So. 2d 161 (FIa.1987). The same evil addressed by the statutes at issue in the instant case is the possession of a firearm while engaged in criminal behavior. Cf. Simms v. State, 538 So. 2d 549 (Fla. 3d DCA 1989) (different evils addressed in statutes prohibiting armed robbery and possession of short-barreled shotgun; therefore dual convictions proper). We emphasize that we are dealing here with cases that in no wise present a "former (do…
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Boschen v. State, 647 So. 2d 1054 (Fla. 5th DCA 1994)…eceded from on other grounds, Carawan v. State, 515 So. 2d 161 (Fla.1987). As to Counts 12 and 13, one of these must be vacated since under a strict Block-burger 1 test, either Count 12 or 13 is wholly contained within Count 11. See Simms v. State, 538 So. 2d 549 (Fla. 3d DCA 1989); Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988); Ziegler v. State, 385 So. 2d 1168 (Fla. 1st DCA), review denied, 392 So. 2d 1381 (Fla.1980). Accordingly, we vacate the conviction as to Count 13 and remand for resentencing.…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972)
- Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)