RODERICK GLENN MACK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court reversed Mack's conviction for unlawful display of a firearm because it was based on the same firearm used in the robbery conviction, and vacated his life sentence because the trial judge erroneously believed the habitual offender statute mandated life imprisonment without discretion.
A single firearm cannot support both a robbery conviction enhancement and a separate unlawful display conviction, and a trial judge must exercise discretion when sentencing under the habitual offender statute rather than treating it as mandatory.
[1] When a robbery conviction is enhanced by use of a firearm, the same firearm cannot support a separate conviction for unlawful display of that firearm.
[2] The habitual offender statute permits judicial discretion in sentencing rather than mandating a specific sentence.
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Join FLexlaw to unlock all legal intelligence“when a robbery conviction is enhanced because of the use of a firearm in the robbery, the single act with the same firearm cannot form the basis for a separate conviction and sentence”
Establishing the rule against double use of the same firearm for enhancement and separate conviction
Mack was convicted of robbery with a firearm enhancement and also convicted of unlawful display of a firearm based on the same weapon. The trial judge…
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PER CURIAM.
Upon our consideration of the record and the state’s confession of error, we reverse in part the convictions ordered below and vacate in part the sentences imposed.
First, when a robbery conviction is enhanced because of the use of a firearm in the robbery, the single act with the same firearm cannot form the basis for a separate conviction and sentence. Stripling v. State, 602 So. 2d 663 (Fla. 3d DCA 1992) (citing Cleveland v. State, 587 So. 2d 1145, 1146 (Fla.1991)). Accordingly, Mack’s conviction for unlawful display of a firearm must be reversed and that sentence vacated. Second, in sentencing Mack to life imprisonment after finding him an habitual offender, the trial judge acted under the erroneous belief that there was no discretion in applying the habitual offender statute’s permissive penalties. Because this is not the case, see Stripling, 602 So. 2d at 664-65; see also Burdick v. State, 594 So. 2d 267 (Fla.1992); §§ 775.084(4)(a)(1) & (4)(b)(1), Fla.Stat. (1991), the life sentence ordered must be vacated and the case re-. manded to the trial court to reevaluate and enter an appropriate sentence. We have examined appellant’s remaining points and are of the view that they are nonmeritorious.
Affirmed in part, reversed in part, and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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MacK v. Singletary, 142 F. Supp. 2d 1369 (S.D. Fla. 2001)…urt of Appeal reversed Mack’s conviction for the unlawful display of a firearm, and remanded for re-sentencing, finding that the trial judge did have discretion to apply the habitual offender statute’s permissive penalties.. See Mack v. State, 608 So.2d 897, 898 (Fla. 3d DCA 1992). The appellate court rejected without discussion Petitioner’s remaining claims as non-meritorious. Id. On July 14, 1993, Mack was re-sentenced to life in prison. On appeal, Petitioner filed a memorandum brief pursuant…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Duncan v. State, 602 So. 2d 663 (Fla. 3d DCA 1992)
- Stripling v. State, 602 So. 2d 663 (Fla. 3d DCA 1992)