BRIEN ALLEN, APPELLANT
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1996-04-09
No. 94-1905
MINER and VAN NORTWICK, JJ., concur.
671 So. 2d 233 Florida District Court of Appeal, First District (1996) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida First District Court of Appeal affirmed Brien Allen's convictions for armed robbery, armed kidnapping, and armed burglary committed during the same criminal episode with the same firearm, holding that State v. Stearns does not prohibit multiple convictions where each offense contains separate and distinct elements unrelated to firearm possession.


Holding

The court affirmed Allen's convictions, holding that State v. Stearns does not apply where each offense contains elements that are separate and distinct and where none of the offenses are criminal solely as a result of firearm possession. However, the court certified a question of great public importance regarding whether separate convictions and sentences are permissible for armed burglary, armed robbery, and armed kidnapping as part of the same criminal episode.


Headnotes

[1] A defendant may not be convicted and sentenced for multiple offenses involving a firearm that arise out of the same criminal episode if the offenses do not contain separa…

[2] A conviction for an offense is permissible even if it involves the use of a firearm, provided the offense is criminal independent of the firearm possession.

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Key Quotes

“a defendant could not be convicted and sentenced for two crimes involving a firearm that arose out of the same criminal episode”

The broad holding from State v. Stearns that the court sought to distinguish and limit in this case.

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Facts & Procedural History

Allen was convicted of armed robbery, armed kidnapping, and armed burglary, all committed during the same criminal episode using the same firearm. Eac…

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Opinion of the Court
WOLF, Judge.

WOLF, Judge.

We are faced with one issue in this case: Whether appellant’s convictions and sentences for the offenses of armed robbery, armed kidnapping, and armed burglary, committed with the same firearm during the same criminal episode, constitute impermissible, multiple punishments for the same offense. The issue might be restated as whether the case of State v. Stearns, 645 So. 2d 417 (Fla.1994), and its progeny, require us to reverse two of the convictions in the instant case.

In Steams, supra, the supreme court stated, “In Brown we held [referring to State v. Brown, 633 So. 2d 1059 (Fla.1994) ] that a defendant could not be convicted and sentenced for two crimes involving a firearm that arose out of the same criminal episode.” Id. at 418.

In Everett Brown v. State, 670 So. 2d 965 (Fla. 1st DCA 1995), we questioned whether this broad statement was applicable where each of the firearm offenses contained separate and distinct elements. We, nevertheless, felt bound to apply Steams as interpreted by this court in A.J.H. v. State, 652 So. 2d 1279 (Fla. 1st DCA 1995). See also Maxwell v. State, 666 So. 2d 951 (Fla. 1st DCA 1996).1 We do not, however, feel that we are required to follow Steams in the instant situation, where each of the crimes contain elements that are separate and distinct, and none of the offenses are criminal only as a result of the defendant possessing or concealing a firearm. Gaber v. State, 662 So. 2d 422 (Fla. 3d DCA 1995).

In Steams, the court held that the defendant could not be found guilty of carrying a firearm during commission of grand theft when he received an enhanced sentence for burglary of a structure while armed. In the instant case, each offense for which the defendant was convicted was criminal, notwithstanding the possession of the firearm. Under these circumstances, we find Steams is inapplicable.2

It is somewhat unclear, however, whether each offense may be enhanced as a result of the use of the same firearm during one criminal episode. We, therefore, affirm, but certify the following question as being one of great public importance:

WHETHER APPELLANTS MAY BE SEPARATELY CONVICTED AND SENTENCED FOR ARMED BURGLARY, ARMED ROBBERY, AND ARMED KIDNAPPING WHERE EACH OFFENSE IS PART OF THE SAME CRIMINAL EPISODE?

MINER and VAN NORTWICK, JJ., concur. . A very good argument may be made that the language in Stearns, supra, only constituted dicta, and that the crimes involved in that case did not each involve separate elements, and therefore, the supreme court did nothing to extend the original holding in State v. Brown, 633 So. 2d 1059 (Fla.1994). In light of this court's decision in supra, however, this court is not free to interpret Stearns so narrowly.

. We would note that the case of Marrow v. State, 656 So. 2d 579 (Fla. 1st DCA 1995), is also inapplicable in that the firearm which was stolen in the instant case was taken prior to the victim returning home, the robbery necessarily involved the separate act of taking different items, and therefore, appellant was not convicted of a theft involving the same gun which provided the basis for the armed burglary charge.


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Citator

Cited By

  • Robinson v. State, 679 So. 2d 315 (Fla. 1st DCA 1996)
    …, State v. Stearns, 645 So. 2d 417 (Fla.1994), precludes the conviction for carrying a concealed firearm. However, the various other offenses encompass conduct which would be criminal without regard to the existence of a firearm, and Allen v. State, 671 So. 2d 233 (Fla. 1st DCA), rev. granted, No. 87,941 (Fla.1996), establishes that the Steams prohibition against convicting and sentencing for multiple crimes involving a firearm and arising out of the same criminal episode thus does not apply to these offenses…
  • Brien Allen v. State, 684 So. 2d 819 (Fla. 1996)
    …PER CURIAM. We have for review Allen v. State, 671 So. 2d 233 (Fla. 1st DCA 1996), in which the First District Court of Appeal certified the following question to be of great pubbc importance: WHETHER APPELLANTS MAY BE SEPARATELY CONVICTED AND SENTENCED FOR ARMED BURGLARY, ARMED ROBBERY, AND ARMED KIDNAPPING…

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