RODRICK WIMBERLY, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1995-02-01

No. 94-1477

Before SCHWARTZ, C.J., and BARKDULL and GODERICH, JJ.

649 So. 2d 338 Florida District Court of Appeal, Third District (1995) Positive Treatment

Cited by 5 cases

Topics

Double Jeopardy

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Opinion of the Court

PER CURIAM.

The defendant, Rodrick Wimberly, appeals from his convictions and sentences for second degree murder with a firearm and for unlawful possession of a firearm while engaged in a criminal offense.

We affirm the conviction and sentence for second degree murder; however, upon the State’s proper confession of error, we reverse the conviction and sentence for unlawful possession of a firearm while engaged in a criminal offense. Where the use of a weapon is the basis for enhancing the charge of second degree murder to a life felony, double jeopardy bars a separate conviction and sentence for misuse of the same firearm. Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Allen v. State, 643 So. 2d 87 (Fla.3d DCA 1994); Joseph v. State, 625 So. 2d 109 (Fla. 3d DCA 1993); Thomas v. State, 617 So. 2d 1128 (Fla. 3d DCA 1993).

We find that the defendant’s remaining point lacks merit.

Accordingly, we affirm in part and reverse in part.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Gantorius v. State, 761 So. 2d 488 (Fla. 3d DCA 2000)

…felony. See Cleveland v. State, 587 So. 2d 1145, 1146 (Fla.1991); Marmol v. State, 750 So. 2d 764, 766 (Fla. 3d DCA 2000); Acosta v. State, 738 So. 2d 487, 488 (Fla. 3d DCA 1999); Vidal v. State, 704 So. 2d 746 (Fla. 3d DCA 1998); Wimberly v. State, 649 So. 2d 338 (Fla. 3d [*490] DCA 1995); Sales v. State, 653 So. 2d 456 (Fla. 3d DCA 1995). Accordingly, we reverse with directions that the appellant’s conviction and sentence for possession of a firearm during the commission of a felony be vacated. Obviously,…
Jenkins v. State, 730 So. 2d 409 (Fla. 1st DCA 1999)

…se violated his double jeopardy rights in light of his accompanying conviction of attempted second-degree murder with a firearm. See State v. Brown, 633 So. 2d 1059 (Fla. 1994); Mosely v. State, 679 So. 2d 287 (Fla. 1st DCA 1996); Wimberly v. State, 649 So. 2d 338 (Fla. 3d DCA 1995). The order is therefore reversed to the extent that it summarily denies this claim, and this ease is remanded to the trial court for further proceedings on the claim. The order is otherwise affirmed. ERVIN, ALLEN and DAVIS, JJ.,…
LEE v. State (Fla. 3d DCA 2021)

…t with the life sentence. Where the use of a weapon is the basis for enhancing the charge of second- 4 degree murder to a life felony, double jeopardy bars a separate conviction and sentence for misuse of the same firearm. Wimberly v. State, 649 So. 2d 338, 338 (Fla. 3d DCA 1995); Gantorius v. State, 761 So. 2d 488, 490 (Fla. 3d DCA 2000); see also Cleveland v. State, 587 So. 2d 1145, 1146 (Fla. 1991); Marmol v. State, 750 So.2d 764, 766 (Fla. 3d DCA 2000); Acosta v. State, 738 So. 2d 487, 488 (Fla…

Authorities Cited

Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
Allen v. State, 643 So. 2d 87 (Fla. 3d DCA 1994)
Lucious Kelvin Thomas v. State, 617 So. 2d 1128 (Fla. 3d DCA 1993)
Surface v. Town OF BAY Harbor Islands, 625 So. 2d 109 (Fla. 3d DCA 1993)
Joseph v. State, 625 So. 2d 109 (Fla. 3d DCA 1993)

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