DEBRA GALLOWAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the appellant's convictions for carrying a concealed firearm and possession of a firearm by a convicted felon, but reversed the sentence due to a sentencing scoresheet error. The court remanded the case for resentencing.
The court held that the convictions did not violate double jeopardy. However, the court held that the additional points for firearm possession were improperly assessed on the scoresheet under Florida Rule of Criminal Procedure 3.702(d)(12) when the firearm possession was an element of the underlying offenses themselves and not related to an additional substantive offense.
[1] Convictions for carrying a concealed firearm and possession of a firearm by a convicted felon are affirmed when the offenses each contain an element not contained in the…
[2] The principle that dual convictions for armed burglary and carrying a concealed weapon may violate double jeopardy does not apply to all circumstances where a firearm is…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We do not read Steams as proclaiming a general exception to Blockburger, or to the application of section 775.021(4), Florida Statutes, in all circumstances in which a firearm is an element of companion offenses, each otherwise containing an element or elements not contained in the other.”
Explains the court's reasoning for affirming the convictions against a double jeopardy challenge.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of carrying a concealed firearm and possession of a firearm by a convicted felon. The appeal concerned the validity of the…
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PER CURIAM.
We affirm Appellant’s convictions for carrying a concealed firearm and for possession of a firearm by a convicted felon. See Skeens v. State, 556 So. 2d 1113 (Fla.1990); Washington v. State, 661 So. 2d 1294 (Fla. 4th DCA 1995), cause dismissed, 669 So. 2d 252 (Fla.1996); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,182, 76 L.Ed. 306 (1932).
We have considered State v. Stearns, 645 So. 2d 417 (Fla.1994), in which the supreme court reversed a dual conviction, on double jeopardy grounds, for armed burglary and carrying a concealed weapon, but do not deem it applicable here. We do not read Steams as proclaiming a general exception to Blockburger, or to the application of section 775.021(4), Florida Statutes, in all circumstances in which a firearm is an element of companion offenses, each otherwise containing an element or elements not contained in the other.
We note conflict on this point with Bell v. State, 673 So. 2d 556 (Fla. 1st DCA 1996), and Maxwell v. State, 666 So. 2d 951 (Fla. 1st DCA), rev. granted, No. 87,290, 673 So. 2d 30 (Fla. Apr. 11,1996). We also affirm as to an evidentiary issue raised, regarding whether certain testimony falls under the hearsay rule, without addressing it, as its admission, if error, in any event would be harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
We reverse Appellant’s sentence and remand for resentencing due to score-sheet error in assessing 18 additional points for possession of a firearm. Florida Rule of Criminal Procedure 3.702(d)(12) permits assessment of these additional points where the defendant is convicted of committing a felony, other than those enumerated in subsection 775.087(2), Florida Statutes, “while having in his or her possession a firearm.” (Emphasis added) We recognize that two districts appear to have decided this issue otherwise. See State v. Davidson, 666 So. 2d 941 (Fla. 2d DCA 1995); Gardner v. State, 661 So. 2d 1274, 1275 (Fla. 5th DCA 1995).
We do not disagree with the conclusion in Davidson and Gardner that assessing the additional scoresheet points does not offend principles of double jeopardy. But we construe rule 3.702(d)(12) as inapplicable to convictions of these two offenses when unrelated to the commission of any additional substantive offense.
We remand for resentencing under an amended scoresheet.
GUNTHER, C.J., and STONE and PARIENTE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (41 total)
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White v. State, 714 So. 2d 440 (Fla. 1998)…ANSTEAD, Justice. - We have for review the decision in White v. State, 689 So. 2d 371 (Fla. 2d DCA 1997), which certified conflict with the decision in Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. MATERIAL FACTS Petitioner Anthony D. White was arrested and later charged and convicted of two offenses: carrying a concealed firearm in violation of section 790.01, Florida…1 / 3
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Shiver v. State, 717 So. 2d 524 (Fla. 1998)…PER CURIAM. We have for review the decision in State v. Shiver, 700 So. 2d 780 (Fla. 2d DCA 1997), which the district certified to be in conflict with the opinion in Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996), concerning the issue of whether additional sentencing points for carrying or possessing a firearm during the commission of a crime may be added to a defendant’s sentencing score where the defendant is convicted of carrying a con…
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Freeman v. State, 717 So. 2d 105 (Fla. 5th DCA 1998)…sess eighteen points for possession of a firearm where possession was one of the essential elements of the crime for which the defendant was being sentenced. The Court thus approved the Fourth District Court of Appeal’s holding in Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996) and overruled the line of cases from this court that held to the contrary. See, e.g., Davis v. State, 710 So. 2d 764 (Fla. 5th DCA 1998); Smith v. State, 683 So. 2d 577, 579 (Fla. 5th DCA 1996), rev. dismissed, 691 So. 2d 1081 (F…
Previewing 3 of 41 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1996)
- State v. Davidson, 666 So. 2d 941 (Fla. 2d DCA 1995)
- City OF Sarasota v. Mikos, 645 So. 2d 417 (Fla. 1994)
- State v. Stearns, 645 So. 2d 417 (Fla. 1994)
- Skeens v. State, 556 So. 2d 1113 (Fla. 1990)
- Maxwell v. State, 666 So. 2d 951 (Fla. 1st DCA 1996)
- Bell v. State, 673 So. 2d 556 (Fla. 1st DCA 1996)
- Washington v. State, 661 So. 2d 1294 (Fla. 4th DCA 1995)