THE STATE OF FLORIDA, APPELLANT,
v.
TOMAS JIMENEZ, APPELLEE
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Florida appealed from a trial court's judgment of acquittal entered notwithstanding a jury verdict that convicted the defendant of firearm possession during commission of a felony, after the jury acquitted him of first-degree murder. The court affirmed, holding that the verdicts were logically inconsistent and the firearm conviction could not stand.
The court held that the defendant did not waive his right to challenge the verdict inconsistency by failing to object to the jury instruction, and that the verdicts were obviously inconsistent and thus the firearm conviction was properly set aside. The court rejected the state's argument that the jury could have convicted on firearm possession based on attempted murder, as there was no evidence of attempted murder.
[1] A defendant preserves the right to challenge an inconsistent jury verdict by filing a post-trial motion for judgment of acquittal notwithstanding the verdict.
[2] A jury verdict of acquittal on a predicate felony and a conviction for possessing a firearm during the commission of that same felony are legally inconsistent.
Previewing 2 of 4 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“the point involving the aforesaid inconsistency in the jury verdict is sufficiently preserved for further review if the defendant, as here, files a post-trial motion for judgment of acquittal notwithstanding the verdict in the trial court.”
Establishes that defendant did not waive the right to challenge inconsistent verdicts despite failing to object to jury instruction.
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Join FLexlaw to unlock all legal intelligenceA jury acquitted the defendant of first-degree murder but convicted him of unlawful possession of a firearm during the commission of a felony. The tri…
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PER CURIAM.
This is an appeal by the state from a post-trial order which enters a judgment of acquittal for the defendant on a charge of unlawful possession of a firearm during the commission of a felony — after the jury had acquitted the defendant of first-degree murder and convicted the defendant on the above firearm charge. We affirm the order under review based on the following briefly stated legal analysis.
First, we reject the state’s contention that the defendant waived his right to challenge the inconsistency in the jury verdicts herein by failing to object to a standard jury instruction that each crime charged in the indictment be considered separately and that a finding of guilty or not guilty on one count should not affect the verdict on any other count. Indeed, we have previously rejected this very same argument and have held that the point involving the aforesaid inconsistency in the jury verdict is sufficiently preserved for further review if the defendant, as here, files a post-trial motion for judgment of acquittal notwithstanding the verdict in the trial court. Ayrado v. State, 431 So. 2d 320, 322 (Fla. 3d DCA 1983).
Moreover, the defendant did not expressly agree to the above instruction, and, thus, McKee v. State, 450 So. 2d 563 (Fla. 3d DCA 1984), relied on by the state, is inapplicable to this case.
Second, we conclude that the verdicts returned by the jury in this case, an acquittal on the charge of first-degree murder and a conviction on the charge of possessing a firearm while committing the same first-degree murder, are obviously inconsistent and thus the firearm possession conviction was properly set aside based on the rule stated in Mahaun v. State, 377 So. 2d 1158 (Fla.1979), and Redondo v. State, 403 So. 2d 954 (Fla.1981).
Moreover, the two verdicts cannot be reconciled under Pitts v. State, 425 So. 2d 542 (Fla.1983), on the theory that the jury could have concluded that the defendant possessed a firearm while committing an attempted murder, as charged in the alternative in the information filed below. This is so because, contrary to the state’s contention, there is utterly no evidence adduced below that the defendant committed an attempted murder.
Affirmed.
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State v. Dewarn Antonio Brown, 924 So. 2d 86 (Fla. 3d DCA 2006)…1018, 1021 (Fla. 4th DCA 2006); McKee v. State, 450 So. 2d 563 (Fla. 3d DCA 1984); see also Davis v. State, 459 So. 2d 1120 (Fla. 3d DCA 1984); cf. State v. Barton, 523 So. 2d 152, 153 n. 2 (Fla.1988)(declining to decide question); State v. Jimenez, 542 So. 2d 430 (Fla. 3d DCA 1989). II. On the merits, there is no true legal inconsistency because of the rational possibility (which is, in fact, consistent with the evidence in this case) that the guilty verdict as to first degree felony murder was based on a…
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Mantilla v. State, 38 So. 3d 196 (Fla. 3d DCA 2010)…the ‘same’ cocaine.”); see also Redondo v. State, 403 So. 2d 954, 956 (Fla.1981) (holding that defendant, acquitted of all felony charges, could not be convicted for unlawful possession of a firearm during commission of a felony); State v. Jimenez, 542 So. 2d 430, 431 (Fla. 3d DCA 1989) (holding that “acquittal on the charge of first-degree murder and a conviction on the charge of possessing a fire [*200] arm while committing the same first-degree murder, are obviously inconsistent”). Moreover, “[v]erdicts…
Authorities Cited
- Redondo v. State, 403 So. 2d 954 (Fla. 1981)
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)
- Pitts v. State, 425 So. 2d 542 (Fla. 1983)
- McKEE v. State, 450 So. 2d 563 (Fla. 3d DCA 1984)
- Ayrado v. State, 431 So. 2d 320 (Fla. 3d DCA 1983)