LUCIOUS KELVIN THOMAS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in giving a jury instruction on the principal theory, but double jeopardy bars a second conviction for firearm possession when the firearm use elevated the murder charge.
Defendant was convicted of murder and unlawful possession of a firearm. The state charged the defendant under the principal theory, and the jury recei…
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PER CURIAM.
Defendant Lucious Kelvin Thomas seeks reversal of his convictions for murder, second-degree, and unlawful possession of a firearm in a criminal offense. We affirm in part, reverse in part, and remand for corrected sentence.
The defendant argues that the trial court erred in giving the jury an instruction on the principal theory. We disagree. Sufficient evidence was produced at trial to support the instruction. The state’s information charged the defendant under the principal theory. The state’s questioning, as well as defendant’s cross-examination, reflect that both parties were aware of this theory. The proper charge to be given the jury rested in the sound discretion of the trial judge and no abuse was demonstrated in the court’s decision to give the jury the principal instruction. See Rosales v. State, 547 So. 2d 221 (Fla. 3d DCA 1989).
We do agree with the defendant, however, that because the use of a firearm was the basis for raising the charge of second-degree murder to a life felony, double jeopardy barred the second conviction for misuse of the same firearm. See Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992); Pedrick v. State, 599 So. 2d 200 (Fla. 5th DCA1992).
Accordingly, the trial court’s order is affirmed in part, reversed in part, and remanded for entry of a corrected sentence.
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McGRIFF v. State, 12 So. 3d 894 (Fla. 1st DCA 2009)…evidence adduced at trial supports such an instruction. See Masaka v. State, 4 So. 3d 1274, 1284 (Fla. 2d DCA 2009); Wells v. State, 967 So. 2d 418, 419 (Fla. 1st DCA 2007); Lewis v. State, 693 So. 2d 1055, 1057 (Fla. 4th DCA 1997); Thomas v. State, 617 So. 2d 1128, 1128 (Fla. 3d DCA 1993). If there is no evidence that would support the principals theory, then the reading of the instruction is error. See id. Such an error is not harmless when it is capable of misleading the jury in such a way that the defendan…
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Donald Lenneth Banks v. State, 219 So. 3d 19 (Fla. 2017)…evidence adduced at trial supports such an instruction. See Masaka v. State, 4 So. 3d 1274, 1284 (Fla. 2d DCA 2009); Wells v. State, 967 So. 2d 418, 419 (Fla. 1st DCA 2007); Lewis v. State, 693 So. 2d 1055, 1057 (Fla. 4th DCA 1997); Thomas v. State, 617 So. 2d 1128, 1128 (Fla. 3d DCA 1993). If there is no evidence that would support the principals theory, then the reading of the instruction is error. See id. Such an error is not harmless when it is capable of misleading the jury in such a way that the defendan…
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Morris Lee Sales v. State, 653 So. 2d 456 (Fla. 3d DCA 1995)…rate convictions for second degree murder with a firearm 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…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Bennie Lee Pearson v. State, 603 So. 2d 676 (Fla. 3d DCA 1992)
- Rosales v. State, 547 So. 2d 221 (Fla. 3d DCA 1989)
- Pedrick v. State, 599 So. 2d 200 (Fla. 5th DCA 1992)