WILLIAM HOWARD HANCOCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed and vacated the defendant's conviction for use of a firearm in the commission of a felony under Florida Statute section 790.07(2) due to a fundamental double jeopardy violation, while affirming other convictions and sentences.
A conviction for use of a firearm in the commission of a felony must be vacated when it violates constitutional double jeopardy rights, which constitutes fundamental error.
[1] A violation of constitutional double jeopardy rights constitutes fundamental error requiring reversal of a conviction for use of a firearm in the commission of a felony.
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Join FLexlaw to unlock all legal intelligenceWilliam Howard Hancock was convicted under Count VII of case number G88-1597-CFA in Seminole County Circuit Court of use of a firearm in the commissio…
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COWART, Judge.
A violation of constitutional double jeopardy rights being fundamental error, State v. Johnson, 483 So. 2d 420 (Fla.1986), we reverse and vacate the defendant’s conviction, under Count VII of case number G88-1597-CFA in the criminal division of the Circuit Court for Seminole County, Florida, of the offense of use of a firearm in the commission of a felony, section 790.07(2), Florida Statutes. See Hall v. State, 517 So. 2d 678 (Fla.1988); Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989); Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989); Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989); Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So. 2d 1366 (Fla.1989); Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989); Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989); Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988); Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988); and Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988).
We also vacate the probation order relating to the vacated conviction but do not remand for resentencing because the vacated conviction does not sufficiently change the defendant’s scoresheet as to affect the recommended guidelines sentence. The defendant’s convictions and sentences are otherwise affirmed.
AFFIRMED in part; REVERSED in part.
GOSHORN and PETERSON, JJ'., concur.
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Cited By
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Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991)…IAMANTIS, J., concurs specially with opinion. COWART, J., dissents without opinion. .Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So. 2d 1366 (Fla.1989). See also, Hall v. State, 517 So. 2d 678 (Fla.1988); Hancock v. State, 559 So. 2d 1307 (Fla. 5th DCA 1990); Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989); Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989); Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989); Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989); Neal v. Stat…
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Simmons v. State, 580 So. 2d 295 (Fla. 5th DCA 1991)…the 1983 amendment to section 775.-021(4) had the effect of ratifying the holding in Pinder and Hegstrom that felony murder and the underlying felony were “the same offense" within the constitutional double jeopardy prohibition. . Hancock v. State, 559 So. 2d 1307 (Fla. 5th DCA 1990); Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989); Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989); Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989); Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So…
Authorities Cited (11 total)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988)
- Alphonse Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989)
- Cardwell v. State, 525 So. 2d 1025 (Fla. 5th DCA 1988)
- Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988)
- Crayton v. State, 536 So. 2d 399 (Fla. 5th DCA 1989)
- Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)
- Willingham v. State, 535 So. 2d 718 (Fla. 5th DCA 1989)
- Curry v. State, 539 So. 2d 573 (Fla. 5th DCA 1989)