HORACE YOUNG, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Young was convicted of burglary, robbery, attempted robbery, and unlawful firearm possession and sentenced under Florida's habitual violent felony offender statute. The court affirmed the habitual offender enhancement but reversed the separate firearm conviction because the same firearm use could not support both the enhancement and a distinct conviction.
First-degree felonies punishable by life imprisonment are subject to habitual offender enhancement, so the trial court properly sentenced Young under the habitual violent felony offender statute. However, the same firearm use that enhanced the sentences cannot also form the basis for a separate conviction and sentence for unlawful firearm possession.
[1] First-degree felonies punishable by a term of years not exceeding life imprisonment are subject to enhancement under the habitual offender statute.
[2] A single act involving the use of a firearm cannot form the basis for both a conviction for committing a felony and a separate conviction for using a firearm while commit…
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Join FLexlaw to unlock all legal intelligence“The supreme court recently determined that first-degree felonies punishable by a term of years not exceeding life imprisonment are subject to enhancement under the habitual offender statute.”
Establishes that the habitual offender statute applies to life-punishable felonies, rejecting Young's argument otherwise.
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Join FLexlaw to unlock all legal intelligenceYoung was found guilty under a four-count indictment: burglary of a structure, robbery, attempted robbery, and unlawful possession of a firearm by a c…
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PER CURIAM.
Defendant, found guilty of all charges under a four count indictment, appeals his conviction for unlawful possession of a firearm while engaged in a criminal offense and his sentence under the habitual offender statute, section 775.084, Florida Statutes (1989). We affirm in part and reverse in part.
Defendant was found guilty of burglary of a structure (Count I); robbery (Count II); attempted robbery (Count III); and unlawful possession of a firearm by a convicted felon (Count IV). Defendant was sentenced pursuant to the habitual violent felony offender enhancement statute, § 775.084(4)(b), Fla.Stat. (1989), to a term of thirty years imprisonment for Counts I and II with fifteen years minimum mandatory, and a term of fifteen years imprisonment for Counts III and IV, both sentences to run concurrently.
Defendant argues that while both the burglary and robbery statutes under which he was convicted are first-degree felonies punishable by life imprisonment, see §§ 810.02(2)(b), 812.13(2)(a), Fla.Stat. (1989), the habitual offender statute does not provide for the enhancement of life felonies. See § 775.084(4)(b), Fla.Stat. (1989). This is incorrect. The supreme court recently determined that first-degree felonies punishable by a term of years not exceeding life imprisonment are subject to enhancement under the habitual offender statute. Burdick v. State, 594 So. 2d 267, 271 (Fla.1992); see also, Henry v. State, 576 So. 2d 409 (Fla. 3d DCA), dec. approved, 596 So. 2d 661 (Fla.1992); Westbrook v. State, 574 So. 2d 1187, 1188 (Fla. 3d DCA 1991), dec. approved, 595 So. 2d 50 (Fla.1992). In so finding, the court noted that its holding applies equally to subsection (4)(a) and subsection (4)(b) of the statute. Burdick, 594 So. 2d at 271 n. 9. Thus, the trial court acted properly in sentencing defendant pursuant to the habitual violent felony offender statute.
However, where defendant’s convictions were enhanced because of the use of a firearm, the single act committed by defendant involving use of the same firearm cannot form the basis for a separate conviction and sentence for use of a firearm while committing a felony. Cleveland v. State, 587 So. 2d 1145, 1146 (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 § 790.07(2), Fla.Stat. (1989). Thus, defendant’s conviction and sentence for the unlawful possession of a firearm while engaged in a criminal offense must be reversed.
Accordingly, affirmed in part, reversed in part.
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Citator
Cited By
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Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992)…that a minimum mandatory term may not be required in a habitual offender sentence imposed for a first degree felony punishable by life. This contention is wholly without merit. See Burdick v. State, 594 So. 2d 267 (Fla. [*729] 1992); Young v. State, 600 So. 2d 24 (Fla. 3d DCA 1992). Affirmed. . The rule is otherwise as to the separate double jeopardy right to protection against a successive prosecution after a finding of not guilty. See infra note 3. See generally Illinois v. Vitale, 447 U.S. 410, 100 S.Ct…
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Hayes v. State, 598 So. 2d 135 (Fla. 5th DCA 1992)…er v. State, 576 So. 2d 931 (Fla. 5th DCA 1991), approved, 595 So. 2d 956 (Fla.1992); Westbrook v. State, 574 So. 2d 1187 (Fla. 3d DCA 1991), approved, 595 So. 2d 50 (Fla.1992); Paige v. State, 570 So. 2d 1108 (Fla. 5th DCA 1990) and Young v. State, 600 So. 2d 24 (Fla. 3d DCA 1992). The application of the habitual offender statute to the armed robbery charge was proper but the application of the statute was not proper as to the armed kidnapping charge. See Paige. A sentence is not illegal where a defendant…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Henry v. State, 596 So. 2d 661 (Fla. 1992)
- Kern Ron Davis v. State, 590 So. 2d 496 (Fla. 3d DCA 1991)
- Westbrook v. State, 574 So. 2d 1187 (Fla. 3d DCA 1991)
- Sessions v. State, 597 So. 2d 832 (Fla. 3d DCA 1992)
- Henry v. State, 576 So. 2d 409 (Fla. 3d DCA 1991)
- Westbrook v. State, 595 So. 2d 50 (Fla. 1992)
- Lock v. State, 595 So. 2d 50 (Fla. 1992)