ANTHONY MCGEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony McGee appeals his convictions for aggravated assault, possession of a firearm in commission of a felony, discharging a firearm in public, and resisting arrest without violence. The Fifth District Court of Appeal affirms his convictions and 50-month sentence, rejecting arguments that the verdicts were legally inconsistent and that the mandatory minimum sentence violated double jeopardy.
The convictions are affirmed. The verdicts are not legally inconsistent because the jury could have determined that resistance occurred either before or after the shooting, making the acquittal-negation test for true inconsistent verdicts inapplicable. The mandatory minimum sentence and aggravated assault classification do not violate double jeopardy because the aggravated assault was charged under the distinct statutory offense of assault upon a law enforcement officer, not reclassified due to firearm use.
[1] Inconsistent jury verdicts are generally permissible, as they may reflect jury leniency and do not necessarily indicate a lack of guilt.
[2] The "true inconsistent verdict" exception applies only when an acquittal on one count negates a necessary element for conviction on another count.
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Join FLexlaw to unlock all legal intelligence“True inconsistent verdicts are 'those in which an acquittal on one count negates a necessary element for conviction on another count.'”
Establishes the legal standard for the only recognized exception to the general rule permitting inconsistent verdicts.
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Join FLexlaw to unlock all legal intelligenceMcGee was involved in an encounter with a law enforcement officer that escalated into a chase. During the chase, McGee shot at the officer. After the …
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ANTOON, Judge.
The defendant appeals his convictions and sentences for aggravated assault,1 possession of a firearm in commission of a felony,2 discharging a firearm in public,3 and resisting arrest without violence.4 The defendant was sentenced to a term of fifty months’ imprisonment with a three-year mandatory minimum pursuant to section 775.087(2), Florida Statutes (1995). We affirm.
On appeal, the defendant argues that his convictions must be reversed because the guilty verdicts for the crimes of aggravated assault and resisting arrest without violence are legally inconsistent. We disagree.
As a general rule, inconsistent verdicts are permitted. See Eaton v. State, 438 So. 2d 822 (1983). This is because jury verdicts may reflect leniency and therefore, do not always speak to the guilt or innocence of a defendant. There is only one recognized exception to this general rule; namely, the “true inconsistent verdict” exception. True inconsistent verdicts are “those in which an acquittal on one count negates a necessary element for conviction on another count.” Gonzalez v. State, 440 So. 2d 514, 515 (Fla. 4th DCA), cause dismissed, 444 So. 2d 417 (Fla.1983). An example of a true inconsistent verdict is where a defendant is convicted of committing felony murder but acquitted on the underlying felony charge. See Mahaun v. State, 377 So. 2d 1158 (Fla.1979). See also Redondo v. State, 403 So. 2d 954 (Fla.l981)(defendant could not be convicted of unlawful possession of a firearm during the commission of a felony where the jury failed to find the defendant guilty of any felony). The “true inconsistent verdict” exception does not apply in the instant case. The officer’s effort to subdue the defendant involved an encounter followed by a chase during which the defendant shot at the officer. After the shot was fired, the chase resumed. Therefore, the verdict of guilty of aggravated assault on a law enforcement officer in no way negates the verdict of guilty of resisting arrest without violence because the jury could have determined that the act of resistance occurred either before or after the shooting.
The defendant also argues that it was error to impose a mandatory minimum sentence and to reclassify the aggravated assault charge to a second-degree felony. The defendant maintains that the use of a firearm was the basis for both the mandatory minimum sentence and the reclassification and therefore, his convictions for aggravated assault and possession of a firearm during the commission of a felony violate double jeopardy-
Our review of the record indicates that the aggravated assault was not reclassified due to the use of a firearm. Rather, the defendant was charged and convicted of aggravated assault pursuant to section 784.07(2)(c), Florida Statutes (1995), which specifically creates the distinct substantive offense of aggravated assault upon a law enforcement-officer, a second-degree felony. See § 777.04(4)(d), Fla.Stat. (1995).
The other issues raised by the defendant being without merit, we affirm.
AFFIRMED.
PETERSON, C.J., and THOMPSON, J., concur. . §§ 784.07(2)C, 784.021(l)(a), and 775.0823(1), Fla.Stat. (1995).
. § 790.07, Fla.Stat. (1995).
. § 790.15, Fla.Stat. (1995).
. § 843.02, Fla.Stat. (1995).
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Emerson J. Pinkney v. State, 74 So. 3d 572 (Fla. 2d DCA 2011)…al examples of aggravated assault on a law enforcement officer. See, e.g., Williams v. State, 597 So. 2d 377 (Fla. 2d DCA 1992); Nelson v. State, 753 So. 2d 648 (Fla. 3d DCA 2000); Wallace v. State, 688 So. 2d 429 (Fla. 3d DCA 1997); McGee v. State, 687 So. 2d 22 (Fla. 5th DCA 1996); Mitchell v. State, 611 So. 2d 1269 (Fla. 3d DCA 1992).…
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Martin v. State, 741 So. 2d 1259 (Fla. 4th DCA 1999)…PER CURIAM.. Affirmed. See McGee v. State, 687 So. 2d 22 (Fla. 5th DCA 1996). POLEN, SHAHOOD and GROSS, JJ., concur.…
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State v. Perez, 718 So. 2d 912 (Fla. 5th DCA 1998)…7. In this case, the jury could have concluded that Perez’ decision to speed and pass the cars in a no-passing zone was not reckless, but his final decision to try to pass the last car after seeing the approaching van, was. See also McGee v. State, 687 So. 2d 22 (Fla. 5th DCA 1996) (finding of guilt on resisting arrest without violence not inconsistent with finding of guilt on aggravated assault, since defendant committed a number of criminal acts in a short time period, and the jury could have reasoned def…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Redondo v. State, 403 So. 2d 954 (Fla. 1981)
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)
- Eaton v. State, 438 So. 2d 822 (Fla. 1983)
- Hinson v. Palm Beach Cnty., 440 So. 2d 514 (Fla. 4th DCA 1983)
- Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983)