THE STATE OF FLORIDA, APPELLANT,
v.
ROY KENNETH FINNEY, APPELLEE
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Florida appeals a trial court's order vacating a defendant's firearm possession conviction as duplicitous of a robbery with firearm conviction. The appellate court affirms the vacation, holding that dual convictions for the same act of carrying a firearm during robbery violate statutory intent and prior precedent, and certifies conflict with contrary decisions from other districts.
The court affirmed the trial court's vacation of the firearm possession conviction, holding that dual convictions for firearm possession and robbery with a firearm are impermissible under Carawan and Hall because the legislature did not intend to punish a defendant twice for the single act of displaying or carrying a firearm while committing a robbery. The court also affirmed the retroactive application of Carawan and Hall in post-conviction proceedings.
[1] A conviction for possession of a firearm is duplicitous and impermissible when it arises from the same act as a conviction for robbery with a firearm.
[2] Judicial decisions prohibiting dual convictions for robbery with a firearm and possession of a firearm are applied retroactively in post-conviction proceedings.
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Join FLexlaw to unlock all legal intelligence“[T]he legislature had no [*1142] intent of punishing a defendant twice for the single act of displaying a firearm or carrying a firearm while committing a robbery”
Establishes the core principle that dual convictions for firearm possession and robbery with a firearm violate legislative intent and are impermissible
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Join FLexlaw to unlock all legal intelligenceRoy Kenneth Finney was convicted of both possession of a firearm and robbery with a firearm. The trial court granted his motion for post-conviction re…
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PER CURIAM.
The State of Florida appeals the trial court’s order granting defendant’s motion for post-conviction relief and vacating defendant’s conviction for possession of a firearm as duplicitous of his conviction for robbery with a firearm. The state correctly concedes that the trial court properly vacated defendant’s firearm possession conviction. Hall v. State, 517 So. 2d 678, 680 (Fla.1988) (“[T]he legislature had no intent of punishing a defendant twice for the single act of displaying a firearm or carrying a firearm while committing a robbery”; such dual convictions are impermissible); see Carawan v. State, 515 So. 2d 161 (Fla.1987).1 Recognizing that this court has applied Carawan and Hall retroactively in post-conviction proceedings, Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988), review granted, 545 So. 2d 869 (Fla.1989); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988),2 the state requests that we certify conflict with Love v. State, 532 So. 2d 1133 (Fla. 4th DCA 1988), review granted, No. 73,401 (Fla. Mar. 17, 1989),3 and Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), review denied, 536 So. 2d 244 (Fla.1988), which hold to the contrary. In accordance with Pastor and Henderson, we affirm the retroactive application of Cara-wan and Hall. We certify conflict with Love and Harris.
Affirmed.
. Because defendant committed the offenses before July 1, 1988, Carawan v. State, 515 So. 2d 161 (Fla.1987), and its progeny, not chapter 88-131, section 7, Laws of Florida, control. State v. Smith, 547 So. 2d 613 (Fla.1989).
. Accord Merckle v. State, 541 So. 2d 1312 (Fla. 2d DCA), review granted, 545 So. 2d 1369 (Fla. 1989); Spadaro v. State, 539 So. 2d 1169 (Fla. 2d DCA 1989); State v. Etlinger, 538 So. 2d 1354 (Fla. 2d DCA 1988); Jensen v. State, 538 So. 2d 540 (Fla. 2d DCA), review granted, No. 73,828 (Fla. June 5, 1989); Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988), review granted, No. 73,496 (Fla. May 3, 1989); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988), review denied, 544 So. 2d 199 (Fla.1989).
.In Love, the fourth district refused to apply Carawan upon defendant’s appeal from resentencing.
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…State, 526 So. 2d 1077 (Fla. 2d DCA 1988). THIRD DISTRICT COURT OF APPEAL: Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989); Ambroa v. State, 547 So. 2d 294 (Fla. 3d DCA 1989); Sands v. State, 547 So. 2d 293 (Fla. 3d DCA 1989); State v. Finney, 550 So. 2d 1141 (Fla. 3d DCA 1989); Joseph v. State, 547 So. 2d 249 (Fla. 3d DCA 1989); Jones v. State, 546 So. 2d 126 (Fla. 3d DCA 1989); Holsey v. State, 544 So. 2d 342 (Fla. 3d DCA 1989); Gonzalez v. State, 543 So. 2d 386 (Fla. 2d DCA 1989); Morales v. State, 54…
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State v. Finney, 558 So. 2d 409 (Fla. 1990)…McDonald, justice. We review State v. Finney, 550 So. 2d 1141 (Fla. 3d DCA 1989), because of certified conflict with Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), review denied, 536 So. 2d 244 (Fla.1988), and Love v. State, 532 So. 2d 1133 (Fla. 4th DCA 1988), approved, 559 So. 2d 198 (Fla.1990). We have jur…
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Inzel Gaitor v. State, 557 So. 2d 100 (Fla. 3d DCA 1990)…Hall v. State, 517 So. 2d 678 (Fla.1988), Gaitor moved under Rule 3.800 to set aside the conviction of unlawful possession of a firearm while engaged in a criminal offense. Our court has held that Carawan and Hall are retroactive. State v. Finney, 550 So. 2d 1141 (Fla. 3d DCA 1989), review granted, No. 74,607 (Fla. Dec. 5, 1989); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988), review granted, 545 So. 2d 869 (Fla.1989); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988). We therefore reverse the order…
Authorities Cited (15 total)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Health Care & Ret. Corp. OF Am. v. Dep't of Health & Rehabilitative Servs., 526 So. 2d 743 (Fla. 1st DCA 1988)
- Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988)
- Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)
- Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988)
- Libardo J. Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988)
- Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989)