PEDRO GALBAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
This appeal is brought from convictions for second-degree murder and use of a firearm in the commission of a felony. We find no error in the trial court’s refusal to allow defense counsel to cross-examine the State’s witness with a hypothetical question that bore no relation to the facts of this case. See Sims v. State, 602 So. 2d 1253 (Fla.1992) (exclusion of immaterial evidence is not error); § 90.401, Fla.Stat. (1991).
We reverse the conviction for use of a firearm in the commission of a felony, however, on the authority of Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992), where we held that convictions for second-degree murder with a firearm and unlawful possession of a firearm during the commission of a felony, based on the same act, were impermissibly duplicitous. Accord Goodman v. State, 567 So. 2d 37 (Fla. 3d DCA 1990).
Affirmed in part, reversed in part, and remanded for resentencing.
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…cluded 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 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…
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Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992)…r possession of a firearm during the commission of a felony, entered upon an adverse jury verdict, is absolutely 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 d…
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Morris Lee Sales v. State, 653 So. 2d 456 (Fla. 3d DCA 1995)…arm and possession of a firearm during the commission of a felony, based upon the same act, were impermissibly duplicative and violated the defendant’s double jeopardy rights. See Thomas v. State, 617 So. 2d 1128 (Fla. 3d DCA 1993); Galban v. State, 605 So. 2d 579 (Fla. 3d DCA 1992); Nixon v. State, 603 So. 2d 660 (Fla. 3d DCA 1992). Accordingly, the conviction for possession of a firearm during the commission of a felony must be reversed. Affirmed in part; reversed in part, and remanded for resentencing.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sims v. State, 602 So. 2d 1253 (Fla. 1992)
- Goodman v. State, 567 So. 2d 37 (Fla. 3d DCA 1990)
- Bennie Lee Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992)