STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
ERIC MARTIN HINES, APPELLEE/CROSS-APPELLANT

Fla. 1st DCA | 1997-03-14
No. 96-1672
WEBSTER and PADOVANO, JJ., concur.
695 So. 2d 747 Florida District Court of Appeal, First District (1997) Positive Treatment
Cited by 9 cases

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Synopsis

The State appeals the dismissal of two counts against Hines based on double jeopardy, and Hines cross-appeals the denial of his motion for judgment of acquittal on other counts.


Holding

The appellate court reversed the dismissal of the two counts, finding they did not violate double jeopardy, and affirmed the denial of Hines's motion for judgment of acquittal on the remaining counts.


Headnotes

[1] Separate convictions and sentences may be imposed for crimes arising out of the same criminal episode if each crime requires proof of an element that the other does not.

[2] Aggravated assault with a firearm requires proof of a firearm, an element not required for attempted second-degree murder.

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Facts & Procedural History

Hines was found guilty of multiple offenses including attempted murder and aggravated battery stemming from a single incident where he and a codefenda…

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Opinion of the Court
LAWRENCE, Judge.

LAWRENCE, Judge.

The State directly appeals the post-guilty-verdict dismissal, based on double jeopardy principles, of two counts against Erie Martin Hines (Hines). We reverse on the State’s appeal; we affirm on Hines’s cross-appeal.

A jury found Eric Martin Hines (Hines) guilty of attempted second-degree murder of Robert Forsyth (count one); attempted second-degree murder of Katherine Forsyth (count two); aggravated battery with a firearm (count three); aggravated assault (count four); aggravated assault with a firearm (count five); shooting into a conveyance (count six); and burglary of a conveyance (count seven). Hines committed these crimes on September 24, 1995, in Escambia Couniy.

The facts in brief are that the victims, Mr. and Mrs. Forsyth (their five children at home with a sitter), were taking a night stroll on a deserted beach of Perdido Key. The For-syths, approaching their car at the end of their walk, unobserved, saw two strange men burglarizing their car and a sports car parked behind their car; they waited in fear until the men disappeared over a dune, then ran to their ear and sped off. The sports car shortly was behind them, running the For-syths off the road at one point. Three shots were fired at the Forsyths in their moving ear; one of the shots hit Mr. Forsyth. The Forsyths pulled into a Tom Thumb Store, shouting for help; only then did the sports car drive away.

Officer Zeka, hearing the shots and recognizing them as fired from a .357, observed one car pull into the Tom Thumb convenience store while the other (a Camaro) sped toward Alabama; the officer followed the Camaro and eventually stopped it. Hines was driving the Camaro; Hudson (Hines’s codefendant) was his passenger. The officer, after receiving a dispatch relating to the shootings, arrested Hines and Hudson. A Taurus .357 revolver was found along the road of these events; Hines’s fingerprint was on it. The trial judge denied Hines’s motion for judgment of acquittal on all counts. We affirm without discussion that denial (the cross-appeal).

The State’s appeal is based on the judge’s posttrial decision to dismiss, on “same criminal episode” reasoning, counts five — aggravated assault with a firearm, and six — shooting into a conveyance.1

The Florida Supreme Court subsequently released its opinions in M.P. and Craft, clarifying “same criminal episode” analysis. M.P. v. State, 682 So. 2d 79 (Fla.1996) (holding that adjudications for delinquency for both carrying a concealed weapon and possession of a firearm by a minor, in connection with the same weapon and incident, do not violate double jeopardy); State v. Craft, 685 So. 2d 1292, 1293, 1294 (Fla.1996) (affirmatively answering the question “when a defendant commits separate offenses during the same criminal episode, each involving a firearm, but each having separate and distinct elements, may the defendant be convicted and sentenced for each crime?,” and directing that: “Offenses are separate if each offense requires proof of an element that the other does not.”). These cases hold that separate convictions and sentences can be imposed upon a defendant for crimes arising out of the same criminal episode if each crime requires proof of an element that the other crimes do not — if the crimes have different elements separate convictions and sentences are valid. M.P., 682 So. 2d at 81 (“The Blockbwrger test, which is also called the ‘same-elements’ test, inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution. The Blockbwrger test has been codified in Florida at section 775.021(4), Florida Statutes (1995).”).

The State correctly points out that Hines’s challenged convictions — aggravated assault with a firearm, and shooting into a conveyance — have separate elements from attempted murder, and thus separate convictions and sentences are proper. Attempted second-degree murder requires doing “any act toward the commission of’ an “unlawful killing of a human being, when perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design” to effect the death. §§ 782.04(2), 777.04(1), Fla.Stat. (1995). Aggravated assault with a firearm requires a threat to do violence, with the apparent ability to do so, causing a well-founded fear, with a deadly weapon, without an intent to kill, or with an intent to commit a felony. §§ 784.011(1), 784.021(1), Fla.Stat. (1995). Second-degree attempted murder thus requires no firearm; aggravated assault with a firearm requires a firearm. Aggravated assault with a firearm thus requires an element not required by attempted murder. Separate convictions and sentences therefore are valid for attempted second-degree murder and aggravated assault with a firearm.

Shooting into a conveyance requires “wantonly or maliciously” shooting “at, within, or into,” an occupied vehicle something that “would produce death or great bodily harm.” § 790.19, Fla.Stat. (1995). Shooting into a conveyance thus likewise contains an element, shooting, not required by attempted murder, which does not require a firearm. Separate convictions and sentences for attempted murder and for shooting into a conveyance therefore are valid, despite arising from the same criminal episode.

We therefore reverse and remand for entry of appropriate judgments and sentences on counts five — aggravated assault with a firearm, and six — shooting into a conveyance. We affirm in all other respects.

WEBSTER and PADOVANO, JJ., concur. . The judge sentenced Hines to 88.25 months in prison, including one three-year mandatory term for use of a firearm.


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Citator

Cited By

  • Brooks v. State, 720 So. 2d 1109 (Fla. 4th DCA 1998)
    …PER CURIAM. AFFIRMED. See State v. Johnson, 601 So. 2d 219 (Fla.1992); Beltran v. State, 700 So. 2d 132 (Fla. 4th DCA 1997), and State v. Hines, 695 So. 2d 747 (Fla. 1st DCA 1997). POLEN, GROSS and TAYLOR, JJ, concur.…
  • Lopez-Vazquez v. State, 931 So. 2d 231 (Fla. 5th DCA 2006)
    …element the others do not. Comparing the two shooting crimes with the crime of attempted second-degree murder, the former requires the element of shooting with a firearm from a vehicle or into a vehicle, but the latter does not. See State v. Hines, 695 So. 2d 747, 748 (Fla. 1st DCA 1997) (“Shooting into a conveyance thus likewise contains an element, shooting, not required by attempted murder, which does not require a firearm. Separate convictions and sentences for attempted murder and for shooting into a co…
  • Hudson v. State, 702 So. 2d 304 (Fla. 1st DCA 1997)
    …s and sentences for these counts would violate principles of double jeopardy because appellant was also convicted of attempted second-degree murder with a firearm arising out of the same criminal episode. For the reasons announced in State v. Hines, 695 So. 2d 747 (Fla. 1st DCA 1997) (disposing of the appeal from appellant’s eodefendant’s convictions and sentences), we reverse and remand as to the cross appeal, and direct that the trial court enter the appropriate judgments and sentences on count five, aggrav…

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