LEE P. BOUIE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Affirmed conviction for armed robbery but struck the firearm possession conviction as duplicative under Florida law prohibiting cumulative sentences for the same conduct.
A defendant cannot be separately convicted and sentenced for both armed robbery and unlawful possession or display of a firearm when the firearm was used in the same robbery.
[1] A defendant cannot be separately convicted and sentenced for unlawful possession or display of a firearm when that firearm was used in the commission of armed robbery, as…
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Join FLexlaw to unlock all legal intelligenceBouie was tried on charges of armed robbery and unlawful possession or display of a firearm in commission of the robbery. The jury returned guilty ver…
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PER CURIAM.
Bouie went to trial on an information charging him with armed robbery, and unlawful possession or display of a firearm in the commission of the robbery. During a jury trial, and following the presentation of the evidence the jury retired to consider the verdict. The jury returned verdicts of guilty as to both counts. When the jury was polled, juror Swinton stated disagreement with the verdicts so the court retired the jury again. Later the jury returned the same verdict. The trial court questioned if Swinton had been under duress in reaching his answer. He responded negatively. Defense counsel requested that further inquiry be made in the matter, but the court denied the request. Defense made motions for mistrial which were denied. Bouie was adjudicated guilty and he was sentenced on each count with the sentences to run concurrently. As to the denial of mistrial, we find no error. Whitney v. State, 132 So. 2d 599 (Fla.1961); Rule 3.450 Florida Rules of Criminal Procedure.
As to the second, point we find it was error to sentence for the possession of a firearm in view of the decisions reported in Hall v. State, 517 So. 2d 678 (Fla.1988); Sarduy v. State, 540 So. 2d 203 (Fla. 3d DCA 1989); Payne v. State, 538 So. 2d 1302 (Fla. 1st DCA 1989); Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988). Therefore, the conviction and sentence for armed robbery is affirmed, and the conviction and sentence for possession or display of a firearm is stricken. See Hall v. State, supra.
Affirmed as modified.
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Citator
Cited By
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Brutton v. State, 632 So. 2d 1080 (Fla. 4th DCA 1994)…Id. at 563. In this case, it would not have been necessary at the time of the polling to declare a mistrial. A viable option would have been to send the jury back to deliberate, because a unanimous verdict had not been reached. See Bouie v. State, 540 So. 2d 925 (Fla. 3d DCA 1989) (no basis for new trial where a juror stated his disagreement with the verdict during polling, the court returned the jury to deliberate, and thereafter, the jury returned the same verdict.) The trial court erred, not only in fai…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…3d DCA 1989); Ahlberg v. State, 541 So. 2d 775 (Fla. 3d DCA 1989); Dowding v. State, 541 So. 2d 771 (Fla. 3d DCA 1989); Barnes v. State, 541 So. 2d 166 (Fla. 3d DCA 1989); Tundidor v. State, 541 So. 2d 165 (Fla. 3d DCA 1989); Bouie v. [*760] State, 540 So. 2d 925 (Fla. 3d DCA 1989); Sarduy v. State, 540 So. 2d 203 (Fla. 3d DCA 1989); Smith v. State, 539 So. 2d 601 (Fla. 3d DCA 1989); Williams v. State, 539 So. 2d 35 (Fla. 3d DCA 1989); Jean v. State, 538 So. 2d 153 (Fla. 3d DCA 1989); Hurd v. State, 536 So.…
Authorities Cited
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988)
- Whitney v. State, 132 So. 2d 599 (Fla. 1961)
- Payne v. State, 538 So. 2d 1302 (Fla. 1st DCA 1989)
- Eugenio Sarduy v. State, 540 So. 2d 203 (Fla. 3d DCA 1989)