FRED KASE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fred Kase appealed his convictions for aggravated assault with a deadly weapon and improper exhibition of a weapon, arguing the dual convictions violated double jeopardy principles. The Florida appellate court affirmed, holding that the two offenses contain distinct statutory elements and therefore dual convictions are permissible under Florida law.
Dual convictions do not violate double jeopardy because each offense has at least one statutory element that the other does not. Aggravated assault requires creating a well-founded fear of imminent violence, while improper exhibition of a weapon does not require such fear and can be based on careless, angry, or rude display of a weapon without a threatening gesture.
[1] Dual convictions and sentences for offenses arising out of one act, episode, or transaction are permissible where each offense has at least one statutory element that the…
[2] Aggravated assault requires the defendant to create a well-founded fear of imminent violence in the victim, a statutory element not required for improper exhibition of a…
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Join FLexlaw to unlock all legal intelligence“Section 775.021(4)(b), Florida Statutes (Supp.1988), permits dual convictions and sentences for criminal offenses arising out of one act, episode or transaction where each offense has at least one statutory element that the other does not.”
Establishes the legal standard permitting dual convictions without violating double jeopardy
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Join FLexlaw to unlock all legal intelligenceKase was convicted of both aggravated assault with a deadly weapon and improper exhibition of a weapon arising from the same incident. Kase contended …
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SMITH, Judge.
Appellant appeals his convictions for aggravated assault with a deadly weapon and improper exhibition of a weapon, contending the dual convictions violate double jeopardy principles. We affirm.*
Section 775.021(4)(b), Florida Statutes (Supp.1988), permits dual convictions and sentences for criminal offenses arising out of one act, episode or transaction where each offense has at least one statutory element that the other does not. State v. McCloud, 577 So. 2d 939 (Fla.1991); and State v. Smith, 547 So. 2d 613 (Fla.1989).
Section 784.021, governing aggravated assaults, requires, among other things, that the defendant create in the mind of the victim a well-founded fear that violence is about to take place. By contrast, section 790.10, governing improper exhibition of a weapon, does not require that the victim be placed in fear. Further, unlike section 784.021, a defendant may be convicted of improper exhibition for merely carelessly, angrily or rudely displaying a weapon. It is not necessary that the defendant make a threatening gesture with the weapon to be convicted of violating section 790.10. Thus, contrary to appellant’s assertion, this case does not fall under the “subsumed” exception, section 775.021(4)(b)(3), since aggravated assault does not necessarily include improper exhibition of a weapon. State v. McCloud, supra.
We further conclude that the trial court was correct in its denial of appellant’s motion for judgment of acquittal on the two charges in that the evidence before the court did not support appellant’s contention that his use of deadly force was justified by the threat of an imminent forcible felony against his mother, or for his own protection.
AFFIRMED.
BOOTH and ZEHMER, JJ., concur. *
The opinion filed on April 9, 1991, is withdrawn and this opinion is substituted.
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Perrin v. State, 599 So. 2d 1365 (Fla. 1st DCA 1992)…st is not whether possession is an element under the facts of the case before us, but whether it is a necessary element under the statute). The approach used in the foregoing supreme court opinions has been followed by this court. In Kase v. State, 581 So. 2d 612 (Fla. 1st DCA 1991), we held that Kase could lawfully be convicted and sentenced for aggravated assault with a deadly weapon and improper exhibition of the same weapon though the two offenses arose out of the same act, because the statutory elements…
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Legette v. State, 694 So. 2d 826 (Fla. 2d DCA 1997)…ce, or fear. § 790.10, Fla. Stat. (1993). Improper exhibition is established when a weapon is exhibited in a rude, careless, angry, or threatening manner, whereas robbery does not require exhibition of the weapon in such a manner. Cf. Kase v. State, 581 So. 2d 612 (Fla. 1st DCA 1991) (no double jeopardy violation for convictions of improper exhibition of a weapon and aggravated assault). Because the elements required to prove improper exhibition of a firearm are not subsumed in the attempted robbery with a fi…
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A.T. v. State, 658 So. 2d 662 (Fla. 3d DCA 1995)…(Fla. 3d DCA 1983); In the Interest of J.C.D., 598 So. 2d 304 (Fla. 4th DCA 1992). Accordingly, on remand, A.T. must be discharged from this count. As to A.T.’s remaining points on appeal, we find no error and affirm. See generally, Kase v. State, 581 So. 2d 612 (Fla. 1st DCA 1991). Reversed and remanded in part and affirmed in part. . When this appeal initially came before us, there was no indication in the record that A.T. had either been charged or adjudicated for culpable negligence although both part…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)