JAMES BARNES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a conviction for unlawful possession of a firearm while engaged in a criminal offense must be vacated when the attempted murder conviction is enhanced due to firearm use. Other errors raised were without merit.
[1] A conviction for unlawful possession of a firearm while engaged in a criminal offense must be vacated when the underlying felony conviction is enhanced due to the use of…
[2] Evidence of prior acts is admissible to prove intent and lack of mistake when those facts are at issue.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of attempted murder first-degree and unlawful possession of a firearm while engaged in a criminal offense. The attempted murde…
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PER CURIAM.
Appellant seeks reversal of his convictions for attempted murder first-degree and unlawful possession of a firearm while engaged in a criminal offense. Defendant’s conviction for attempted murder first-degree was enhanced from a first-degree felony to a life felony by reason of his use of a firearm. Therefore, as the state concedes, defendant’s conviction and sentence for possession of a firearm while engaged in a criminal offense must be vacated. See Carawan v. State, 515 So. 2d 161 (Fla.1987); see also Hall v. State, 517 So. 2d 678 (Fla.1988); Brown v. State, 538 So. 2d 116 (Fla. 5th DCA), review denied, 545 So. 2d 1366 (Fla.1989); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988).
All other errors raised by the defendant are without merit. Evidence of prior acts proved intent and lack of mistake, both facts at issue. See Goldstein v. State, 447 So. 2d 903 (Fla. 1st DCA 1984). When this evidence was first introduced, defendant requested a shortened form of the Williams Rule instruction. See Williams v. State, 110 So. 2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); § 90.404(2), Fla.Stat. (1989). When this request was denied, defendant waived the reading of the full instruction which the court was prepared to give in order to point out the limited purpose for which the evidence was being admitted. Thereafter, during the jury conference, the defendant did not request a Williams Rule instruction.
Therefore, the defendant cannot now complain of the trial court’s failure to give that instruction. See Skipper v. State, 420 So. 2d 877 (Fla.1982) (a request is necessary in order to preserve for appellate review the right to receive an instruction). Also, defendant used familial trust to effectuate the crime, thus justifying a departure sentence. See Turner v. State, 510 So. 2d 920 (Fla. 1st DCA 1987).
Accordingly, defendant’s conviction for unlawful possession of a firearm while engaged in a criminal offense is reversed and his sentence as to that conviction is vacated. Defendant’s conviction and sentence for attempted murder first-degree is affirmed.
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Barnes v. State, 588 So. 2d 585 (Fla. 1991)…OVERTON, Justice. This is a petition to review Barnes v. State, 562 So. 2d 729 (Fla. 3d DCA 1990), where the district court held that Barnes’ use of familial trust to effectuate the crime justified a departure sentence. We find conflict with Davis v. State, 517 So. 2d 670 (Fla.1987). We have jurisdiction. Art. V, § 3(b)(3), Fl…
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Barnes v. State, 597 So. 2d 931 (Fla. 3d DCA 1992)…On Remand PER CURIAM. In Barnes v. State, 562 So. 2d 729 (Fla. 3d DCA 1990), this court affirmed the departure sentence ordered as to defendant James Barnes, basing our opinion as to this issue upon the defendant’s use of familial trust to effectuate the crime for which he was convicted, the attempted fir…1 / 2
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Barnes v. State, 655 So. 2d 1318 (Fla. 3d DCA 1995)…ief under Florida Rule of Criminal Procedure 3.850. See Vi-queira v. Roth, 591 So. 2d 1147 (Fla. 3d DCA 1992). It appears that the Rule 3.850 motion was timely, given that direct review in this ease was not completed until 1992. See Barnes v. State, 562 So. 2d 729 (Fla. 3d DCA 1990), quashed, 588 So. 2d 585 (Fla.1991), on remand, 597 So. 2d 931 (Fla. 3d DCA), review denied, 605 So. 2d 1262 (Fla.1992). On the merits, however, we conclude that the motion is legally insufficient. Affirmed.…
Authorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Williams v. Florida, 361 U.S. 847 (U.S. 1959)
- White v. Illinois, 361 U.S. 847 (U.S. 1959)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988)
- Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)
- Padilla v. State, 447 So. 2d 903 (Fla. 3d DCA 1984)
- Skipper v. State, 420 So. 2d 877 (Fla. 1982)
- Turner v. State, 510 So. 2d 920 (Fla. 1st DCA 1987)