ROBERT MULKEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction for attempted second-degree murder with firearm enhancement but reversed conviction for possession of firearm during commission of attempted murder, finding the latter a lesser-included offense.
A conviction for possession of a firearm during the commission of attempted murder cannot stand when the defendant is convicted of attempted second-degree murder with a firearm, as the former is a lesser-included offense.
[1] Possession of a firearm during the commission of attempted murder is a lesser-included offense of attempted second-degree murder with a firearm and cannot support a separ…
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Join FLexlaw to unlock all legal intelligenceRobert Mulkey was convicted of attempted second-degree murder with a firearm (enhanced for firearm use) and possession of a firearm during the commiss…
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PER CURIAM.
Robert Mulkey appeals convictions and sentences for attempted second degree murder with a firearm, enhanced because he used a firearm, and possession of a firearm during the commission of the attempted murder. Finding that the trial court did not err in permitting the state to exercise peremptory challenges to strike two black prospective jurors, we affirm defendant's conviction for attempted second degree murder with a firearm. Bowden v. State, 588 So. 2d 225, 229 (Fla.1991), cert. denied, — U.S. -, 112 S.Ct. 1596, 118 L.Ed.2d 311 (1992); and eases cited in Alen v. State, 596 So. 2d 1083, 1090-1091 n. 11 (Fla. 3d DCA 1992) (Hub-bart, J. concurring) (“In criminal cases, courts have generally approved challenges by the state to potential jurors who have either been charged with crimes or had close relatives so charged.”); see Green v. State, 583 So. 2d 647 (Fla.1991), cert. denied, — U.S. -, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992).
However, we set aside the judgment of conviction and sentence for possession of a firearm during the commission of the attempted murder. Cleveland v. State, 587 So. 2d 1145 (Fla.1991); McGahee v. State, 600 So. 2d 9 (Fla. 3d DCA 1992); Cerkella v. State, 588 So. 2d 1058 (Fla. 3d DCA 1991); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988), approved, 587 So. 2d 1145 (Fla.1991). The cause is remanded for resentencing.
Affirmed in part; reversed in part; and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Bowden v. State, 588 So. 2d 225 (Fla. 1991)
- Alphonso Green v. State, 583 So. 2d 647 (Fla. 1991)
- Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988)
- Jenkins v. State, 596 So. 2d 1083 (Fla. 1st DCA 1992)
- Olimpio Cerkella v. State, 588 So. 2d 1058 (Fla. 3d DCA 1991)
- McGAHEE v. State, 600 So. 2d 9 (Fla. 3d DCA 1992)