MARK JOHNSON, PETITIONER,
v.
HARRY SINGLETARY, SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS, ETC., RESPONDENT
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The court held that appellate counsel's deficient performance prejudiced the petitioner by failing to raise meritorious issues, entitling him to relief.
Petitioner was convicted of multiple offenses, including felony murder and burglary, and received enhanced sentences based on firearm possession. The …
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PER CURIAM.
We grant Mark Johnson’s petition for writ of habeas corpus. We hold that he was prejudiced by his appellate counsel’s deficient performance, Meyer v. Singletary, 610 So. 2d 1329 (Fla. 4th DCA 1992), and is entitled to relief as to two issues. Petitioner’s remaining points lack merit.
Johnson was convicted of felony murder, burglary with an assault and a firearm, armed robbery, and possession of a firearm while engaged in a criminal offense. The court enhanced the robbery conviction based on the firearm possession pursuant to section 775.087, Florida Statutes (1989), and imposed a three-year minimum mandatory sentence on the burglary conviction for possession of a firearm. As the state correctly concedes, it is a double jeopardy violation to enhance the robbery conviction and to convict and sentence Johnson on the separate count of possession of a firearm in the commission of the felony for the single act involving the use of the same firearm. Cleveland v. State, 587 So. 2d 1145, 1146 (Fla.1991); Mobly v. State, 614 So. 2d 1230 (Fla. 3d DCA 1993).
The state also concedes that Johnson’s three-year minimum-mandatory sentence for possession of a firearm on the burglary conviction is error. The state recognizes that Johnson was not accused of being in actual possession of a firearm, and that no evidence was introduced demonstrating he possessed one. Thus, the minimum mandatory sentence was improper. Stripling v. State, 602 So. 2d 663 (Fla. 3d DCA 1992); Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989).
Appellate counsel should have raised these points on appeal. His failure to do so demonstrates a deficient prejudicial performance. Accordingly, we grant the petition for writ of habeas corpus, vacate the conviction and sentence for possession of a firearm, and vacate the three-year minimum mandatory sentence on the burglary conviction. We remand for further proceedings.
Habeas corpus granted; cause remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Gunn v. State, 641 So. 2d 462 (Fla. 4th DCA 1994)…(on separate victims). The concealed firearm conviction was pursuant to section 790.01(2), Florida Statutes. Appellant alleges that he has been placed in double jeopardy, citing Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Johnson v. Singletary, 625 So. 2d 1251 (Fla. 3d DCA 1993); and Stearns v. State, 626 So. 2d 254 (Fla. 5th DCA 1993). However, we deem these authorities inapposite, as in each case, the separate firearm charge involved using, or carrying, a weapon or firearm while committing or attempting…
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Johnson v. State, 649 So. 2d 948 (Fla. 3d DCA 1995)…ructions is an issue which is cognizable by direct appeal, not by motion for postconviction relief. As to appellant’s final point, during the pendency of this appeal the trial court complied with this court’s mandate in [*949] Johnson v. Singletary, 625 So. 2d 1251 (Fla. 3d DCA 1993). That issue is now moot. Affirmed.…
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Ross v. State, 687 So. 2d 1357 (Fla. 3d DCA 1997)…fense of possession of a firearm in the commission of that criminal offense violate the defendant’s constitutional privilege against double jeopardy. § 775.021(4), Fla. Stat. (1993); State v. Steams, 645 So. 2d 417 (Fla.1994); Johnson v. Singletary, 625 So. 2d 1251 (Fla. 3d DCA 1993). Accordingly, we vacate the conviction and sentence for possession of a firearm, and affirm the defendant’s remaining convictions and sentences. Reversed in part, affirmed in part.…
Authorities Cited
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Meyer v. Singletary, 610 So. 2d 1329 (Fla. 4th DCA 1992)
- Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989)
- Duncan v. State, 602 So. 2d 663 (Fla. 3d DCA 1992)
- Stripling v. State, 602 So. 2d 663 (Fla. 3d DCA 1992)
- Mobly v. State, 614 So. 2d 1230 (Fla. 3d DCA 1993)