KERN RON DAVIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Kern Ron Davis appeals his convictions for armed robbery and possession of a firearm during the commission of a felony. The court reverses the firearm conviction as barred by double jeopardy under Cleveland v. State, but affirms the armed robbery conviction because Davis failed to preserve his prosecutorial misconduct arguments for appeal.
The conviction for possession of a firearm during the commission of a felony is reversed as barred by double jeopardy under Cleveland v. State. The armed robbery conviction is affirmed because Davis failed to preserve his prosecutorial misconduct arguments through proper objection or mistrial motion and failed to demonstrate fundamental error.
[1] A conviction for possession of a firearm during the commission of a felony is barred by double jeopardy when based on the same criminal act as an armed robbery conviction…
[2] Allegedly improper prosecutorial arguments to the jury do not constitute reversible error absent proper objection or motion for mistrial, unless the error is fundamental.
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Join FLexlaw to unlock all legal intelligence“we reverse the final judgment of conviction and sentence for possession of a firearm during the commission of a felony as it is barred by the doctrine of double jeopardy based on the controlling authority of Cleveland v. State”
Establishes the basis for reversing the firearm conviction under double jeopardy principles
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Join FLexlaw to unlock all legal intelligenceDavis was convicted by jury of armed robbery and possession of a firearm during the commission of a felony. At trial, the prosecuting attorney made th…
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PER CURIAM.
The defendant Kern Ron Davis appeals from judgments of conviction and sentences for (1) armed robbery and (2) possession of a firearm during the commission of a felony, which were entered below based on an adverse jury verdict. Upon the state’s confession of error, which we accept as well founded, we reverse the final judgment of conviction and sentence for possession of a firearm during the commission of a felony as it is barred by the doctrine of double jeopardy based on the controlling authority of Cleveland v. State, 587 So. 2d 1145 (Fla.1991); see also Hall v. State, 517 So. 2d 678 (Fla.1988).
This result, which is compelled by Cleveland, necessarily means that our prior contrary decisions in State v. Hanna, 576 So. 2d 410 (Fla. 3d DCA 1991) and Dukes v. State, 1991 WL 188026 (Fla. 3d DCA 1991) (case no. 89-3009, opinion filed September 24, 1991) [16 F.L.W. D2495] no longer represent the law.
As to the armed robbery conviction, the defendant’s sole point on appeal is that the prosecuting attorney made three brief, allegedly improper arguments to the jury, which the defendant urges require a new trial. Without dispute, this point has not been preserved for appellate review by proper objection or motion for mistrial and therefore cannot present reversible error, absent a showing of a fundamental error. See Nixon v. State, 572 So. 2d 1336, 1341 (Fla.1990), cert. denied, — U.S. -, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991); State v. Cumbie, 380 So. 2d 1031 (Fla.1980); Deliford v. State, 505 So. 2d 523, 524 (Fla. 3d DCA 1987).
We agree that (a) the combined effect of the first two of the complained-of arguments were sufficiently improper, and (b) the evidence at trial was otherwise sharply in conflict as to whether a robbery or petit theft was committed by the defendant, that reversible error would have been presented if, unlike this case, (a) the defendant had properly objected to these two arguments or moved for a mistrial based thereon, and (b) the trial court had overruled the objection or denied the motion for mistrial. We cannot say, however, that these arguments were so egregious and, more importantly, so prolonged and repeated that such comments went to the foundations of the case or the merits of the cause of action so as to constitute the relatively rare showing of a fundamental error which, when established, obviates the necessity for a proper objection or motion for mistrial.
Moreover, we conclude that the third complained-of argument was based on the evidence, was otherwise entirely proper, and, consequently, presents no fundamental error whatever. See Clark v. State, 363 So. 2d 331 (Fla.1978); Sanford v. Rubin, 237 So. 2d 134 (Fla.1970); State v. Jones, 204 So. 2d 515 (Fla.1967); Porter v. State, 356 So. 2d 1268 (Fla. 3d DCA 1978); cf. Pait v. State, 112 So. 2d 380 (Fla.1959); Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984), rev. denied, 462 So. 2d 1108 (Fla.1984); Peterson v. State, 376 So. 2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So. 2d 642 (Fla.1980).
Given the failure of the defendant .to properly preserve the point urged herein for appellate review and the further failure to establish that the error complained of was fundamental in nature, the final judgment of conviction and sentence for armed robbery is affirmed. As previously stated, however, the final judgment of conviction and sentence for possession of a firearm during the commission of a felony' is reversed and the defendant is discharged therefrom.
Affirmed in part; reversed in part.
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Cited By (14 total)
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…innon, 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 DCA 1992); Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991); Goodman v. State, 567 So. 2d 37 (Fla. 3d DCA 1990); Graham v. State, 559 So. 2d 410 (Fla. 2d DCA 1990); Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988); Henderson v. State, 5…
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Bennie Lee Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992)…rearm during the commission of a felony arose out of the same act, the doctrine of double jeopardy barred the later conviction. See Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Sessions v. State, 597 So. 2d 832 (Fla. 3d DCA 1992); Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991); see also Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988). Additionally, we conclude no error occurred when the trial judge ordered defendant’s sentence enhanced. Based upon [*678] our holding in Lamont v. State, 597 So. 2d 823…
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Wimberly v. State, 599 So. 2d 715 (Fla. 3d DCA 1992)…d the State’s concession, that the defendant could not be adjudicated guilty of both armed robbery and possession of a firearm during the commission of the same armed robbery. See Cleveland v. State, 587 So. 2d 1145, 1146 (Fla.1991); Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991). Reversed and remanded for new trial. . Although other crime victims sat on the jury, their experiences with crime were much more remote in time than that of juror Arce.…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- State v. Cumbie, 380 So. 2d 1031 (Fla. 1980)
- Nixon v. State, 572 So. 2d 1336 (Fla. 1990)
- In re Florida Appellate Rules, 112 So. 2d 380 (Fla. 1959)
- Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)
- R.G.B. v. State, 376 So. 2d 1230 (Fla. 2d DCA 1979)