QUINTEN L. CLEVELAND, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court resolved a conflict between district courts regarding whether a defendant can be convicted and sentenced for both attempted robbery with a firearm and use of a firearm while committing a felony when both crimes stem from a single act. The Court held that dual convictions violate double jeopardy principles and are improper when the robbery conviction itself is enhanced due to firearm use.
The Court held that when a robbery conviction is enhanced because of the use of a firearm, the single act involving that same firearm cannot form the basis of a separate conviction and sentence under section 790.07(2) for use of a firearm while committing a felony. Hall v. State remains controlling law, and the legislature's 1988 amendment to section 775.021(4) did not repudiate the rationale supporting this holding.
[1] A conviction for attempted robbery with a firearm, enhanced due to the use of a firearm, precludes a separate conviction and sentence for using a firearm during the commi…
[2] The enhancement of a robbery conviction based on firearm use punishes all elements of using a firearm in the commission of that robbery.
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Join FLexlaw to unlock all legal intelligence“We hold that when a robbery conviction is enhanced because of the use of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under section 790.07(2).”
The Court's primary holding establishing that dual convictions are improper when the robbery charge itself is enhanced by firearm use.
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Join FLexlaw to unlock all legal intelligenceQuinten Cleveland was convicted of attempted robbery with a firearm and use of a firearm while committing a felony based on a single criminal act. The…
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McDONALD, Justice.
We review Cleveland v. State, 574 So. 2d 289 (Fla. 5th DCA 1991), because of direct conflict with Graham v. State, 559 So. 2d 410 (Fla. 2d DCA 1990).*
Cleveland was convicted of and sentenced for the two crimes of attempted robbery with a firearm, sections 812.13(1) and (2)(a) and 777.04, Florida Statutes (1989), and use of a firearm while committing a felony, section 790.07(2), Florida Statutes (1989). The convictions stemmed from a single act committed by Cleveland. The issue under review is whether both convictions are proper. In the instant case, the Fifth District Court of Appeal held that both convictions were proper. The holding was in direct conflict with the Second District Court of Appeal’s decision in Graham, which held that similar dual convictions constituted a violation of double jeopardy.
In Hall v. State, 517 So. 2d 678 (Fla.1988), we ruled that the imposition of convictions for both robbery with a firearm and the display of a firearm during a criminal offense was improper when the convictions arose out of a single act. Our rationale in Hall was predicated in large part on Carawan v. State, 515 So. 2d 161 (Fla.1987). The special concurring opinion in the decision under review and the state both contend that the legislature’s enactment of the 1988 amendment to section 775.021(4) of the Florida Statutes repudiated the rationale supporting Carawan. They further contend that because the Hall decision utilized the Carawan holding, Hall is no longer valid and we should return to State v. Gibson, 452 So. 2d 553 (Fla.1984), in which similar dual convictions were permitted.
We disagree and hold that Hall still controls. It should be noted that Cleveland’s attempted robbery conviction was enhanced from a second-degree felony to a first-degree felony because of the use of the firearm. Upon this enhancement Cleveland was punished for all the elements contained in section 790.07(2) and appropriately sentenced. Although such an enhancement was properly recognized by the Third District Court of Appeal in Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988), as a material factor in deciding whether there has been improper cumulative punishment for the same act, it was apparently overlooked in this case.
We hold that when a robbery conviction is enhanced because of the use of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under section 790.-07(2).
We quash the decision under review, approve Graham and Perez, and remand for further proceedings consistent herewith.
It is so ordered.
SHAW, C.J. and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. *
We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.
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Novaton v. State, 634 So. 2d 607 (Fla. 1994)…o separate crimes of possessing a firearm in the commission of the same felonies. These latter two sets of convictions and sentences would ordinarily be barred by the double jeopardy principles set forth in our recent decision in Cleveland v. State, 587 So. 2d 1145 (Fla.1991). On appeal, the district court found “a waiver of a Cleveland,-type violation with respect to multiple convictions takes place when the defendant voluntarily pleads guilty to the alleged duplicitous charges.” Novaton, 610 So. 2d at 727.…
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…, 482 So. 2d 576 (Fla. 5th DCA 1986). Only Royal, which was decided just before Sanders’ appeal became final, would have been available to argue the aggravated assault was necessarily included in the armed robbery offense. . See Cleveland v. State, 587 So. 2d 1145 (Fla.1991); State v. McKinnon, 540 So. 2d 111 (Fla.1989); Hall v. State, 517 So. 2d 678 (Fla.1988); Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992); Galban v. State, 605 So. 2d 579 (Fla. 3d DCA 1992); Pearson v. State, 603 So. 2d 676 (Fla. 3d DC…
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Philome Mondesir v. State, 814 So. 2d 1172 (Fla. 3d DCA 2002)…endant. We do agree that the conviction and sentence on the possession charge (Count IV) cannot stand because they are improperly duplicative of the substantive charges and thus violate the defendant’s double jeopardy rights. See Cleveland v. State, 587 So. 2d 1145 (Fla.1991); State v. Brown, 633 So. 2d 1059 (Fla.1994); Washington v. State, 597 So. 2d 840 (Fla. 3d DCA 1992). Hence, the conviction and sentence as to Count IV are vacated. II. Turning to the cross-appeal, we first agree with the state that the…
Previewing 3 of 99 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- State v. Gibson, 452 So. 2d 553 (Fla. 1984)
- Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988)
- Graham v. State, 559 So. 2d 410 (Fla. 2d DCA 1990)
- Quinten Cleveland v. State, 574 So. 2d 289 (Fla. 5th DCA 1991)