MICHAEL CANION, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction on two counts of improper exhibition of a dangerous weapon for a single act was reversed because multiple convictions cannot arise from one act, and the trial court was directed to remove the second count from the probation order.
A defendant cannot be convicted of two counts of improper exhibition of a dangerous weapon for a single act.
[1] A defendant cannot receive multiple convictions for improper exhibition of a dangerous weapon arising from a single act, even when adjudication is withheld, because an ad…
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Join FLexlaw to unlock all legal intelligenceAppellant raised a martial arts trident in a threatening manner in the presence of three police officers. The jury found him guilty of two counts of i…
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PER CURIAM.
The state initially charged appellant with three counts of aggravated assault of a law enforcement officer. The incident originating these charges involved the single act of appellant raising a martial arts trident in a threatening manner while in the presence of three police officers. Appellant proceeded to trial under these charges, and the jury found appellant guilty of two counts of the lesser included offense of improper exhibition of a dangerous weapon pursuant' to section 790.10, Florida Statutes (1993). The trial court withheld adjudication and imposed a probationary term of one year upon appellant.
Appellant correctly asserts that it is improper to receive two convictions for a single act of improperly exhibiting a dangerous weapon. Vance v. State, 472 So. 2d 734 (Fla. 1985) (specifically approving Solomon v. State, 442 So. 2d 1030 (Fla. 1st DCA 1983)). Although the trial court withheld adjudication on both counts, appellant suffers prejudice in that an adjudication withheld constitutes a conviction under Florida Rule of Criminal Procedure 3.701(d)(2). See Ryals v. State, 516 So. 2d 1092 (Fla. 5th DCA 1987). In this instance, the adjudications withheld on the guilty verdicts may therefore later be used to increase the sentencing guideline score of appellant should future offenses occur. Accordingly, we reverse as to one count of improper exhibition of a dangerous weapon and remand with direction for the trial court to remove from appellant’s probation order any reference to a second count for which adjudication has been withheld.
REVERSED and REMANDED.
GUNTHER, C.J., and DELL and STEVENSON, JJ., concur.
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Citator
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Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009)…is not ambiguous as to the allowable unit of prosecution. The rule of lenity does not apply in this situation.3 We further find that Vance v. State, 472 So. 2d 734 (Fla.1985), Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998), and Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995), relied upon by Mauldin, are distinguishable. In these cases, the courts held that multiple convictions for improper firearm display were not authorized because the statute provided that the offense was committed when a person ex…
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Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998)…n a rude, careless, angry or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (Emphasis added). In Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995), the defendant was charged with three counts of aggravated assault of a law enforcement officer after he raised a martial arts trident in a threatening manner while in the presence of three police officers. The jury found the def…
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Bass v. State, 739 So. 2d 1243 (Fla. 5th DCA 1999)…y been adjudicated on one count of improper exhibition of a weapon, because the exhibition of the firearm occurred in one criminal episode, although in front of several people. See Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998); Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995). Accordingly two of the convictions for improper exhibition of a firearm must be vacated on remand. We therefore affirm the judgments for aggravated assault (counts V-VIII), but remand to the trial court with instructions to vac…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Major Vance v. State, 472 So. 2d 734 (Fla. 1985)
- Ryals v. State, 516 So. 2d 1092 (Fla. 5th DCA 1987)
- Fayson v. State, 442 So. 2d 1030 (Fla. 5th DCA 1983)
- Solomon v. State, 442 So. 2d 1030 (Fla. 1st DCA 1983)