CURTIS VANCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Vance appeals his convictions for armed robbery, aggravated assault, and firearm use, challenging both the propriety of multiple convictions arising from a single act and the inclusion of improper prior offenses in his sentencing guidelines. The appellate court vacates certain convictions and remands for resentencing based on impermissible dual convictions and improper sentencing scoresheet entries.
The court held that dual convictions for both armed robbery and aggravated assault arising from the same act are impermissible, as are dual convictions for both aggravated assault with a firearm and use of a firearm during the commission of a felony from the same act. The court also held that prior misdemeanors established only by arrest and booking reports cannot be scored under Rule 3.701(d)(5)(a)(1), and that disputed prior felony convictions shown only by F.B.I. rapsheet require further corroborating evidence under Baker v. State.
[1] A defendant may not be convicted of both aggravated assault with a firearm and use or display of a firearm during the commission of a felony when both offenses arise out…
[2] Dual convictions are improper for both armed robbery and aggravated assault arising out of the same act.
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Join FLexlaw to unlock all legal intelligence“a defendant may not be convicted of both aggravated assault with a firearm and use or display of a firearm during the commission of a felony when both offenses arise out of the same act”
Establishes the core holding that multiple convictions for overlapping firearm offenses from a single act violate double jeopardy principles
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Join FLexlaw to unlock all legal intelligenceVance was convicted of armed robbery with a firearm, aggravated assault with a firearm, and use of a firearm during the commission of a felony, all ar…
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SHIVERS, Judge.
Appellant, Curtis Vance, appeals his convictions for armed robbery with the use of a firearm, aggravated assault with the use of a firearm, and use of a firearm during the commission of a felony, as well as the sentence imposed by the trial court for these offenses.
First, appellant alleges that his conviction for both armed robbery and aggravated assault, and for aggravated assault and use of a firearm during the commission of a felony, all arising out of a single act, was impermissible under Carawan v. State, 515 So. 2d 161 (Fla.1987).1 We agree. This court recently held in Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989) that a defendant may not be convicted of both aggravated assault with a firearm and use or display of a firearm during the commission of a felony when both offenses arise out of the same act. Dual convictions are also improper for both armed robbery and aggravated assault arising out of the same act. Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989); Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). Accordingly, appellant’s convictions for both use of a firearm during the commission of a felony and aggravated assault with the use of a firearm are vacated, and the trial court is directed to correct the judgment and sentence. Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1988).
Second, appellant asserts that the trial court erred in allowing his sentencing guideline scoresheet to reflect the inclusion of one prior second-degree felony established only by an F.B.I. rapsheet, and four prior misdemeanors substantiated only with arrest and booking reports. We agree with appellant’s argument on this issue as well. Rule 3.701 d.5.(a)(l), Fla.R.Crim.P., provides that entries in criminal histories which show arrest only shall not be scored. Appellant’s four prior misdemeanors were therefore improperly included in the sentencing guideline scoresheet. Further, al though the F.B.I. rapsheet introduced by the State apparently indicated a 1972 conviction for escape, appellant objected not only to the hearsay nature of the evidence, but also specifically disputed the correctness of the evidence. Therefore, under Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986), the court should have required the State to provide further corroborating evidence of the alleged escape conviction.
Accordingly, appellant’s convictions for aggravated assault and use of a firearm during the commission of a felony are hereby vacated and the case is remanded to the trial court for resentencing.
ZEHMER, J., concurs.
BARFIELD, J., concurs and dissents, with opinion.
. Appellee's contention that Carawan has been overruled by the enactment of Chapter 88-131(7), Laws of Florida (1988), amending section 775.021(4), Florida Statutes (1987), is without merit. Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988).
BARFIELD, Judge,
concurring and dissenting:
I concur in the majority opinion with the exception of that part of the opinion which vacates the conviction for aggravated assault. For the reasons I expressed in Denmark v. State, 538 So. 2d 68, 70 (Fla. 1st DCA 1989), I would affirm the aggravated assault conviction.
Cases With Similar Vibessemantic neighbors from the corpus
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…ndamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively. . See Carawan v. State, 515 So. 2d 161 (Fla.1987); Royal v. State, 490 So. 2d 44 (Fla.1986); Vance v. State, 545 So. 2d 398 (Fla. 1st DCA), rev. denied, 551 So. 2d 463 (Fla.1989); Rojas v. State, 543 So. 2d 415 (Fla. 5th DCA 1989); Edwards v. State, 529 So. 2d 1213 (Fla. 4th DCA), rev. denied, 539 So. 2d 476 (Fla.1988); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1987)…
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Johnson v. State, 583 So. 2d 386 (Fla. 1st DCA 1991)…the trial court failed to require the state to produce corroborating evidence when appellant disputed one of his convictions for grand larceny which was scored as part of his prior record, we must reverse and remand for resentencing. Vance v. State, 545 So. 2d 398 (Fla. 1st DCA), rev. denied, 551 So. 2d 463 (Fla.1989); and Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986). On remand, the state will be permitted to furnish corroborating evidence of the prior conviction challenged. If the challenged grand larc…
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Jennings v. State, 595 So. 2d 251 (Fla. 1st DCA 1992)…tate, 534 So. 2d 1237, 1238 (Fla. 5th DCA 1988). If an accused challenges the accuracy of his prior record, both on hearsay grounds and as to the correctness of the information, the state is required to provide further corroboration. Vance v. State, 545 So. 2d 398, 399-400 (Fla. 1st DCA), review denied, 551 So. 2d 463 (Fla.1989). However, where the objection to prior convictions on a rap sheet is predicated solely on hearsay, with no dispute as to their truth, the state need not produce corroborating evidence…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988)
- Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988)
- Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986)
- Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1987)
- Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989)
- Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989)