CHARLIE DENMARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On motion for rehearing, the First District Court of Appeal affirmed its original decision in Denmark's appeal, rejecting the State's argument that the Florida Supreme Court's decision in State v. McKinnon required reconsideration. The court distinguished Denmark's case from McKinnon because the charging documents and verdict forms in Denmark's case explicitly referenced the firearm element, avoiding the improper inferential reasoning that McKinnon prohibited.
The court held that McKinnon does not affect the disposition of Denmark's case because, unlike in McKinnon, there was no improper inference from a conviction on one count that the defendant carried a firearm during the commission of the offense charged in another count. The charging documents and verdict forms explicitly referenced the firearm element.
[1] A conviction on one count of an information may not be used to enhance punishment for a conviction on another count.
[2] A jury's specific finding of firearm possession in relation to one offense does not automatically reclassify a lesser included offense of a separate count without an inde…
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Join FLexlaw to unlock all legal intelligence“the supreme court's opinion in that case does not affect disposition of this case”
The court's statement that McKinnon does not require reconsideration of Denmark's case
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Join FLexlaw to unlock all legal intelligenceDenmark was charged with three counts of assault with a deadly weapon (pistol), one count of armed robbery, two counts of attempted armed robbery, and…
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PER CURIAM.
Appellee has requested that we reconsider our opinion in this case 538 So. 2d 68, in light of State v. McKinnon, 540 So. 2d 111 (Fla.1989), in which the supreme court quashed this court’s opinion in McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988). We deny the motion for rehearing, because the supreme court’s opinion in that case does not affect disposition of this case.
In McKinnon, the defendant was charged with second-degree murder (count I) and display or use of a firearm during the commission of a felony (count II). The jury found him guilty of manslaughter, a lesser included offense of count I, and of use of a firearm as charged in count II. This court reversed the conviction for use of a firearm and remanded for correction of the judgment to reflect reclassification of the manslaughter conviction to a first degree felony under section 775.087(l)(b), Florida Statutes (1985), and for resentencing.
The supreme court quashed the opinion, ruling that conviction on one count of an information may not be used to enhance punishment for a conviction on another count. It noted that the verdict form as to count I “contained no mention of whether the manslaughter was committed with the use of a firearm,” found that this court had improperly inferred from the conviction in count II the requisite finding of the use of a firearm to reclassify the manslaughter conviction as a first-degree felony, and reinstated the firearm conviction.
In the case at issue, the information specifically charged three counts of assault “with a deadly weapon, to wit: a pistol.” It also specifically charged one count of armed robbery, two counts of attempted armed robbery, and three counts of kidnapping, during the commission of each of which the defendant “had in his possession a firearm or destructive device, to wit: a pistol.” On the three verdict forms finding Denmark guilty of attempted armed robbery, the jury specifically found that he “did have a firearm in his possession.” The jury found him guilty on all three counts of aggravated assault “as charged,” and also found him guilty on three counts of attempted kidnapping “with a firearm,” a lesser included offense of armed kidnapping.
The supreme court’s opinion in McKin-non does not affect disposition of this case because there has been no improper inference from a conviction on one count that the defendant carried a firearm during the commission of the offense charged in another count. The motion for rehearing is DENIED.
SMITH, C.J., and ZEHMER and BARFIELD, JJ., concur.
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…6 (Fla. 1st DCA 1989); Payne v. State, 538 So. 2d 1302 (Fla. 1st DCA 1989), jurisdiction accepted, 544 So. 2d 201 (Fla.1989); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989), rehearing denied, 544 So. 2d 266 (Fla. 1st DCA 1989); Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988), rev. denied, 541 So. 2d 1173 (Fla.1989); Hartley v. State, 531 So. 2d 990 (Fla. 1st DCA 1988); Neal v. State, 531 So. 2d 410 (Fla. 1st DCA 1988); Rose v. State, 530 So. 2d 401 (F…
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Sullivan v. State, 562 So. 2d 813 (Fla. 1st DCA 1990)…set aside, and the cause is remanded for resentencing in accordance herewith. NIMMONS, J., and THOMPSON, FORD L. (Retired), Associate Judge, concur. . No issue is raised on appeal as to the conviction for this offense. . Accord, Denmark v. State, 544 So. 2d 266 (Fla. 1st DCA 1989), citing State v. McKinnon, 540 So. 2d 111 (Fla.1989), and upholding enhancement where the information specifically charged possession of a pistol in each of six counts and the jury returned a verdict form that included a finding…
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Ira J. Harmon v. State, 547 So. 2d 1027 (Fla. 1st DCA 1989)…properly calculated sentencing guidelines. Hall v. State, 517 So. 2d 678 (Fla.1988); Carawan v. State, 515 So. 2d 161 (Fla.1987); Payne v. State, 538 So. 2d 1302 (Fla. 1st DCA 1989); Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989), reh. denied, 544 So. 2d 266; Neal v. State, 531 So. 2d 410 (Fla. 1st DCA 1988); Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989). REVERSED AND REMANDED. ERVIN and WENTWORTH, JJ., concur. . Harmon v. State, 506 So. 2d 500 (Fla. 1st DCA 1987) (Harmon I); Harmon v. State,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Webster Fleming McKINNON, 540 So. 2d 111 (Fla. 1989)
- Webster F. McKINNON v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988)
- Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989)