WILLIAM BENEDIT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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William Benedit's conviction and sentence for possession of a firearm during the commission of a felony violates his constitutional right against double jeopardy. The court reversed the trial court's summary denial of his Rule 3.850 motion to vacate and remanded with directions to set aside the constitutionally barred conviction.
Benedit's conviction and sentence for possession of a firearm during the commission of a felony is absolutely barred by his constitutional right against double jeopardy. The defendant was entitled to have this constitutionally barred conviction and sentence set aside under Rule 3.850.
[1] A conviction and sentence for possession of a firearm during the commission of a felony is absolutely barred by the constitutional right against double jeopardy.
[2] A defendant is entitled to have a constitutionally barred conviction and sentence set aside under Rule 3.850 of the Florida Rules of Criminal Procedure.
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Join FLexlaw to unlock all legal intelligence“Without dispute, the defendant's conviction and sentence for 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.”
Establishes the core holding that the conviction violates double jeopardy protections
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Join FLexlaw to unlock all legal intelligenceWilliam Benedit was convicted and sentenced for possession of a firearm during the commission of a felony based on an adverse jury verdict. On direct …
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PER CURIAM.
We reverse the trial court’s summary denial of the defendant William Benedit’s motion to vacate filed pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. Without dispute, the defendant’s conviction and sentence for 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 defendant was entitled to have this constitutionally barred conviction and sentence set aside under Rule 3.850. See Gandy v. State, 560 So. 2d 1363 (Fla. 1st DCA1990); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA1988), quashed on other grounds, 556 So. 2d 1112 (Fla.1990); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA1988), rev. denied, 544 So. 2d 199 (Fla.1989); Zatler v. State, 475 So. 2d 983 (Fla. 3d DCA1985); see also Finley v. State, 394 So. 2d 215 (Fla. 1st DCA1981).
Moreover, we conclude that, under the circumstances of this case, it would be fundamentally unfair to follow a concededly erroneous affirmance of this conviction by this court on a direct appeal from the subject conviction where the same point was raised and incorrectly rejected without discussion, Be-nedit v. State, 575 So. 2d 236 (Fla. 3d DCA), rev. denied, 589 So. 2d 289 (Fla.1991), especially when the law at the time of the direct appeal was less than a model of clarity on this issue. Moreland v. State, 582 So. 2d 618 (Fla.1991); Witt v. State, 387 So. 2d 922, 931 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Joseph v. State, 447 So. 2d 243, 246-47 (Fla. 3d DCA1983) (en banc), rev. denied, 447 So. 2d 888 (Fla.1983); accord Wright v. State, 604 So. 2d 1248 (Fla. 4th DCA1992); Bourgault v. State, 515 So. 2d 1287 (Fla. 4th DCA1987) (en banc).
The final order under review is reversed, and the cause is remanded to the trial court with directions to vacate the defendant’s conviction and sentence for possession of a firearm during the commission of a felony.
Reversed and remanded.
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…e to argue the aggravated assault was necessarily included 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…
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Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992)…e felonies. The defendant correctly points out that, as an original matter, the latter two sets of convictions and sentences are barred by the double jeopardy principles enunciated in Cleveland v. State, 587 So. 2d 1145 (Fla.1991). Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992), and cases cited. The state counters with the argument that the defendant’s bargain effected a waiver of the double jeopardy claim. We agree with that position and therefore affirm both the convictions and sentences on the possess…
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Fannin v. State, 751 So. 2d 158 (Fla. 2d DCA 2000)…m. Based on these decisions, we conclude that the trial court in this case should have granted Fannin’s motion for postconviction relief as to the sentencing issue, despite our affirmance on the same issue on his direct appeal. See Benedit v. State, 610 So. 2d 699, 699 (Fla. 3d DCA 1992) (reversing denial of motion for post-conviction relief because of fundamental unfairness after erroneous affirmance on direct appeal in which court incorrectly rejected same point without discussion); Wright v. State, 604 So.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (21 total)
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Adams v. Peat, 449 U.S. 1067 (U.S. 1980)
- Jarrett v. Jarrett, 449 U.S. 1067 (U.S. 1980)
- Earnest James Finley v. State, 394 So. 2d 215 (Fla. 1st DCA 1981)
- Health Care & Ret. Corp. OF Am. v. Dep't of Health & Rehabilitative Servs., 526 So. 2d 743 (Fla. 1st DCA 1988)
- Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)
- Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)
- Mervyn Moreland v. State, 582 So. 2d 618 (Fla. 1991)