JOHN M. CURRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant could not be separately punished for using a firearm during the commission of a felony when that use was an essential element of another felony for which he was convicted.
The defendant shot into his ex-girlfriend's apartment after she ended their relationship. One of the bullets struck and killed a visitor inside the ap…
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DANIEL, Judge.
John Curry, the defendant below, appeals his judgments and sentences for sec ond degree murder, shooting or throwing a deadly missile into a building, and use of a firearm while committing or attempting to commit a felony. Curry was found guilty of all three charges by a jury and was then adjudicated guilty and sentenced to three concurrent terms of twelve years imprisonment.
The record reflects that Curry and Peggy Walker had been dating, Peggy broke off the relationship, Curry came to Peggy’s apartment knocking at the door and attempting to get Peggy’s attention. Peggy told him to go away — that their relationship was over. Curry fired two shots, one of which went through Peggy’s front door striking Jenkins, a visitor in Peggy’s apartment, who was sitting on a couch in a direct line with the door. Jenkins died as a result of the gunshot wound several days later. Curry raises three points on appeal. We find no merit to the first and second points and accordingly affirm Curry’s convictions and sentences for second degree murder and shooting into a building.
As his third point on appeal, Curry contends that the trial court erred in adjudicating him guilty and sentencing him for the use of a firearm in the commission of a felony for acts already punished through the other two convictions and sentences. We agree. See Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989); Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989). See also Hall v. State, 517 So. 2d 678 (Fla. 1988); 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 v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). Accordingly, we reverse the conviction and sentence for use of a firearm in the commission of a felony.
AFFIRMED IN PART; REVERSED IN PART.
COBB and COWART, JJ., concur.
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Alphonse Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989)…ly 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. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). SENTENCING Kelly also appeals the imposition of four consecut…
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Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991)…So. 2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So. 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…
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Alphonse Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989)…ights. His conviction for the firearm offense (§ 790.07(2), Fla.Stat.) is hereby reversed and his sentence relating thereto is vacated, see Hall v. State, 517 So. 2d 678 (Fla.1988); Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989); Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989); Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So. 2d 1366 (Fla.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. 2…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988)
- Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988)
- Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988)
- Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989)
- Richardson v. State, 523 So. 2d 746 (Fla. 5th DCA 1988)
- Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989)