VIRGINIA ANN GRANTHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the conviction for using a firearm in the commission of a felony must be vacated because the firearm use was already used to enhance the second-degree murder conviction.
Grantham was convicted of depraved mind second-degree murder, use of a firearm in the commission of a felony, and carrying a concealed weapon. The fir…
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WILLIS, BEN C. (Ret’d.), Associate Judge.
Grantham has appealed from a conviction for depraved mind second-degree murder, use of a firearm in the commission of a felony and carrying a concealed weapon. We affirm in part, reverse in part and remand with directions.
Grantham alleges that the trial court erred in improperly instructing the jury on the defense of excusable homicide and in denying the defense request for an instruction on third-degree murder, pursuant to Section 782.04, Florida Statutes. We affirm on these issues.
However, Grantham further alleges that she should not. have been adjudicated guilty of using a firearm in the commission of a felony, in that the use of a firearm was relied on to enhance her second-degree murder conviction from a first-degree to a life felony, pursuant to Section 775.087, Florida Statutes. We agree. See Hall v. State, 530 So. 2d 1066 (Fla. 1st DCA 1988).
Grantham’s conviction of use of a firearm in the commission of a felony, contrary to Section 790.07(2), Florida Statutes, is therefore reversed, and the case is remanded with directions to vacate that conviction. Because the trial court declined to sentence Grantham on this charge, no resentencing is necessary on remand. The judgment and sentence are in all other respects affirmed.
ERVIN and SHIVERS, JJ., concur.
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Beaubrum v. State, 595 So. 2d 254 (Fla. 3d DCA 1992)…trial court improperly adjudicated the defendant guilty of unlawful possession of a firearm in the commission of an armed robbery and attempted first degree murder with a firearm. Cox v. State, 552 So. 2d 343 (Fla. 5th DCA 1989); Grant-ham v. State, 545 So. 2d 945 (Fla. 1st DCA 1989); Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So. 2d 1366 (Fla.1989). Therefore we strike the convictions and sentence for possession of a firearm during the commission of a felony. In all other respects…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…1025 (Fla. 5th DCA 1988); Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). FIRST DISTRICT COURT OF APPEAL:3 Hammonds v. State, 14 F.L.W. 1793 (Fla. 1st DCA Aug. 2, 1989; Musico v. State, 545 So. 2d 964 (Fla. 1st DCA 1989); Grantham v. State, 545 So. 2d 945 (Fla. 1st DCA 1989); Vance v. State, 545 So. 2d 398 (Fla. 1st DCA 1989); Kelley v. State, 543 So. 2d 286 (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, 53…
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Hammonds v. State, 548 So. 2d 909 (Fla. 1st DCA 1989)…ons for second degree murder with, a firearm and use of a firearm in the commission of a felony. We agree with appellant that his conviction and sentence for use of a firearm in the [*910] commission of a felony should be vacated. Grantham v. State, 545 So. 2d 945 (Fla. 1st DCA 1989). We affirm appellant’s second degree murder conviction, finding that the instruction on excusable homicide was not reversible error. The state urges that the Carawan1 rationale should not apply to invalidate the judgment and sen…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Darrial M. Hall v. State, 530 So. 2d 1066 (Fla. 1st DCA 1988)