ANTHONY SESSIONS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the life sentence for second-degree murder with a firearm under the habitual offender act but vacated the fifteen-year minimum mandatory provision and set aside the separate judgment and sentence for firearm possession.
Appellant was convicted of second-degree murder with a firearm and possession of a firearm during the commission of that murder. The trial court impos…
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SCHWARTZ, Chief Judge.
After a jury trial, the appellant was convicted of second degree murder with a firearm and possession of a firearm in the commission of the second degree murder. While the only substantive point is frivolous, two other issues require further treatment.
1. On the authority of Lamont v. State, 597 So. 2d 823 (Fla. 3d DCA 1992), the life sentence without parole imposed upon Sessions for the life felony of second degree murder with a firearm is affirmed under section 775.084(4)(e), Florida Statutes (1989) of the habitual offender act. The fifteen year minimum mandatory provision is, however, vacated. See Lamont, 597 So. 2d at 829. We make the same certifications of conflict as those contained in the Lamont opinion.
2. The separate judgment and sentence for possession of the firearm are set aside on the authority of Cleveland v. State, 587 So. 2d 1145 (Fla.1991). Accord Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991).
Affirmed in part; reversed in part.
GERSTEN, J., concurs.
HUBBART, Judge
(concurring).
I think the trial court erred in sentencing the defendant to life imprisonment without parole [with a fifteen-year mandatory minimum term] as a habitual violent felony offender under Section 775.084, Florida Statutes (1989), for the life felony of second-degree murder with a firearm; this is so because the Habitual Offender Act contains no extended terms of imprisonment for a life felony conviction as here. Accordingly, the sentence under review should be reversed and the cause remanded to the trial court with directions to resen-tence the defendant under the sentencing guidelines, rather than the Habitual Offender Act. This result reflects the views which I expressed in my dissenting opinion in Lamont v. State, 597 So. 2d 823 (Fla. 3d DCA 1992) (case nos. 89-2917 and 90-1419, opinion filed this date) (en banc) (Hubbart, J., dissenting) and is in accord with decisions of the First, Second, Fourth and Fifth District Courts of Appeal.1
Nonetheless, I am obviously bound by the contrary decision of the en banc majority in Lamont, and, therefore, reluctantly concur with the court’s decision to affirm the sentence under review, although striking the fifteen-year mandatory minimum provision. I concur with no reservations, however, in the court’s decision on the remaining points on appeal as discussed and disposed of in the court’s opinion.
. First District: Gholston v. State, 589 So. 2d 307 (Fla. 1st DCA 1990); Johnson v. State, 568 So. 2d 519 (Fla. 1st DCA 1990); Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA), rev. denied, 576 So. 2d 284 (Fla.1990); Second District: Ledesma v. State, 528 So. 2d 470 (Fla. 2d DCA 1988); Fourth District: Walker v. State, 580 So. 2d 281 (Fla. 4th DCA), juris, accepted, 589 So. 2d 292 (Fla.1991); Newton v. State, 581 So. 2d 212 (Fla. 4th DCA), juris, accepted, 589 So. 2d 291, 292 (Fla.1991); Fifth District: Power v. State, 568 So. 2d 511 (Fla. 5th DCA 1990).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Irving v. State, 627 So. 2d 92 (Fla. 3d DCA 1993)…he same act, the doctrine of double jeopardy barred the latter conviction. See Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992) quashed on other grounds, 616 So. 2d 49 (Fla.1993); Sessions v. State, 597 So. 2d 832 (Fla. 3d DCA 1992), quashed on other grounds, 610 So. 2d 434 (Fla.1992). Accordingly, we remand Irving’s conviction and sentence for unlawful possession of a firearm while engaged in a criminal offense for appropriate correction. We otherwise affir…
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Bennie Lee Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992)…and his conviction for unlawful possession of a firearm 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 [*…
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Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992)…olutely barred by the defendant’s constitutional right against double jeopardy. Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Galban v. State, 605 So. 2d 579 (Fla. 3d DCA1992); Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA1992); Sessions v. State, 597 So. 2d 832 (Fla. 3d DCA1992); Goodman v. State, 567 So. 2d 37 (Fla. 3d DCA1990); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA1988). This being so, the defendant was entitled to have this constitutionally barred conviction and sentence set aside under Rule 3…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA 1990)
- Easter v. State, 568 So. 2d 519 (Fla. 1st DCA 1990)
- Power v. State, 568 So. 2d 511 (Fla. 5th DCA 1990)
- Walker v. State, 580 So. 2d 281 (Fla. 4th DCA 1991)
- Kern Ron Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991)
- Lamont v. State, 597 So. 2d 823 (Fla. 3d DCA 1992)
- Gholston v. State, 589 So. 2d 307 (Fla. 1st DCA 1990)
- 5G'S CAR Sales, Inc. v. Fla. Dep't of Law Enf't, 581 So. 2d 212 (Fla. 3d DCA 1991)
- Newton v. State, 581 So. 2d 212 (Fla. 4th DCA 1991)