JAMES W. PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1989-04-19
No. 87-3199
HERSEY, C.J., and STONE, J., concur.
542 So. 2d 417 Florida District Court of Appeal, Fourth District (1989) Caution
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

James Peterson appealed his convictions for seven felonies, challenging primarily the propriety of a display of firearm conviction and the charge for escape. The court reversed the display of firearm conviction as duplicative under double jeopardy principles and reversed the escape charge to allow for a proper lesser charge of aiding an escape while armed.


Holding

The display of firearm conviction must be reversed as duplicative under double jeopardy principles because the element of displaying a firearm is subsumed within the underlying armed felonies. The escape charge must be reversed and reduced to aiding an escape under section 843.12, which carries a third-degree felony penalty that may be enhanced to second-degree based on Peterson's firearm possession.


Headnotes

[1] A conviction for displaying a firearm during a felony is barred by double jeopardy when the defendant is also convicted of underlying felonies committed with a firearm, s…

[2] The legislative amendment to section 775.021, Florida Statutes (1987), which allows separate sentencing for multiple offenses committed in a single criminal transaction,…

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Key Quotes

“[QUOTE REDACTED — failed verbatim audit (paraphrase, not verbatim). See original_text for the text as originally displayed.]”

Establishes that double jeopardy prevents convictions for display of firearm and armed felonies when they arise from a single act and share common elements.

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Facts & Procedural History

Peterson was charged with attempted first degree murder, aggravated assault with a firearm, armed robbery with a firearm, armed burglary with a firear…

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Opinion of the Court
FRANK, RICHARD H., Associate Judge.

FRANK, RICHARD H., Associate Judge.

In a multi-count information, the appellant, James W. Peterson, was charged with, tried for and convicted of attempted first degree murder, aggravated assault with a firearm, armed robbery with a firearm, armed burglary with a firearm, grand theft of a firearm, aiding an escape while armed, and display of a firearm. The jury acquitted him of aggravated battery and of a second count of attempted first-degree murder. Peterson has raised six points on appeal, all of which we have thoroughly examined; we find only two of the points meritorious.

In Count IX Peterson was charged with the display of a firearm during a felony and he was convicted of that offense. He was simultaneously convicted of four underlying felonies with a firearm— attempted murder, robbery, armed burglary, and escape. Under Hall v. State, 517 So. 2d 678 (Fla.1988), the Count IX conviction for displaying a firearm cannot stand. Using the analysis set out in Carawan v. State, 515 So. 2d 161 (Fla.1987), the supreme court held in Hall that convictions for displaying a firearm and armed robbery, offenses arising from a single act, violated the prohibition against double jeopardy. The post-Carawan amendment to section 775.021, Florida Statutes (1987), does not require a different result. In that amendment the legislature indicated its intention to sentence separately for each criminal offense those persons who “in the course of one criminal transaction or episode, commit[s] an act or acts which constitute one or more criminal offenses,” but the legislature simultaneously codified the Blockburger analysis as the technique for determining whether offenses are separate: “if each requires proof of an element that the other does not.” § 775.021(4)(a), Fla. Stat. (Supp.1988); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Four of the felonies for which Peterson was convicted — aggravated assault with a firearm, armed robbery with a firearm, armed burglary with a firearm, and aiding an escape while armed — contain the element essential to the fifth offense of displaying a firearm while committing a felony.

Thus, the presence of a firearm during the commission of the foregoing felonies forecloses, under either Blockbur-ger or section 775.021(4)(a), the separate offense of displaying a firearm. The remaining valid point Peterson raises is that he was incorrectly charged as a principal in the first degree for aiding and abetting the escape of another. For the escape charge he was subject to the penalties for a second-degree felony, section 944.40, Florida Statutes (1987), and his use of a firearm enhanced the penalty to that of a first-degree felony, section 775.-087(l)(b), Florida Statutes (1987). Peterson contends, and rightly so, that the felony with which he should have been charged is defined in section 843.12, Florida Statutes (1987):

Whoever knowingly aids or assists a person in escaping, attempting to escape, or who has escaped, from an officer or person who has or is entitled to the lawful custody of such person, is guilty of a felony of the third degree....

The factual basis undergirding the proper charge is that during the confrontation with police officers resulting in his arrest, Peterson aided his companion, Carole Lerner, in escaping from the back of a patrol car. We find that Peterson should have been charged with precisely the crime he committed — aiding an escape — rather than as a principal in Carole Lemer’s escape, a status subjecting him to a substantially greater penalty. We note, however, that the third-degree felony of aiding in an escape can be enhanced to a felony of the second degree pursuant to section 775.-087(l)(c), Florida Statutes (1987), based upon Peterson’s possession of a firearm while assisting Lemer’s escape.

Hence, in accordance with the foregoing, we reverse the convictions for display of a firearm and escape, and affirm the convictions and sentences in all other respects. Upon remand, the trial court is directed to strike the display of a firearm charge and to reduce the escape offense to the crime of aiding an escape while armed.

HERSEY, C.J., and STONE, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)
    …. 4th DCA 1989); Williams v. State, 546 So. 2d 1120 (Fla. 4th DCA 1989); Gunn v. State, 546 So. 2d 115 (Fla. 4th DCA 1989); Wright v. State, 546 So. 2d 96 (Fla. 4th DCA 1989); Mitchell v. State, 543 So. 2d 292 (Fla. 4th DCA 1989); Peterson v. State, 542 So. 2d 417 (Fla. 4th DCA 1989); Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989); Prescott v. State, 529 So. 2d 302 (Fla. 4th DCA 1988); Sapp v. State, 522 So. 2d 1006 (Fla. 4th DCA 1988). Reaching the conclusion that the defendant in this case cannot be c…
  • Gaber v. State, 662 So. 2d 422 (Fla. 3d DCA 1995)
    …er does not, the offenses must be considered separate for double jeopardy purposes. See § 775.021(4)(a), Fla.Stat. (1993); State v. Smith, 547 So. 2d 613, 615-16 (Fla.1989); Walls v. State, 579 So. 2d 823, 824 (Fla. 1st DCA 1991); Peterson v. State, 542 So. 2d 417, 418 (Fla. 4th DCA 1989); Marion v. State, 526 So. 2d 1077, 1078 (Fla.2d DCA 1988). We recognize that this decision is contrary to the holding in Marrow v. State, 656 So. 2d 579 (Fla. 1st DCA 1995). The Marrow court, citing to the Florida Supreme C…
  • Williams v. State, 560 So. 2d 311 (Fla. 1st DCA 1990)
    …t indicates that separate punishment is permissible. In short, it appears that Gibson has been resuscitated by the amendment to section 775.021(4). We do not agree with appellant’s assertion that a different result is mandated by Peterson v. State, 542 So. 2d 417 (Fla. 4th DCA 1989). In Peterson, the Fourth District relied upon Hall to hold that separate punishment was not permissible for possession of a firearm during commission of a felony when the underlying felony required the presence of a firearm. Alth…

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