ARTHUR LEE BUFFINGTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Arthur Lee Buffington appealed his convictions for armed robbery, unlawful possession of a firearm while engaged in a criminal offense, and possession of burglary tools. The appellate court affirmed the armed robbery conviction but reversed the firearm and burglary tools convictions due to double jeopardy violations and insufficient evidence, respectively, remanding for resentencing.
The court affirmed the armed robbery conviction, finding sufficient evidence of Buffington's participation as a principal. The court reversed the firearm possession conviction because it violated double jeopardy rights, as the armed robbery charge was enhanced by firearm use. The court reversed the burglary tools conviction for insufficient evidence, as the screwdriver was used only as a replacement key after entry was already gained, not to gain entry.
[1] A conviction for unlawful possession of a firearm while engaged in a criminal offense violates double jeopardy when the underlying criminal offense conviction was already…
[2] Evidence that a screwdriver was used as a replacement key to steal a vehicle does not support a conviction for possession of burglary tools without proof that the screwdr…
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Join FLexlaw to unlock all legal intelligence“Where, as here, the defendant's Armed Robbery conviction was enhanced because of the defendant's use of a firearm, the single act involving the use of the same firearm during the commission of the same robbery cannot form the basis of a separate conviction and sentence for Unlawful Possession of a Firearm while Engaged in a Criminal Offense.”
Establishes the double jeopardy violation preventing separate convictions for the same firearm use in armed robbery
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Join FLexlaw to unlock all legal intelligenceBuffington was convicted of armed robbery, unlawful possession of a firearm while engaged in a criminal offense, and possession of burglary tools. A s…
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PER CURIAM.
Arthur Lee Buffington (“the defendant”) appeals his convictions and sentences for: (1) Armed Robbery; (2) Unlawful Possession of a Firearm while Engaged in a Criminal Offense; and (3) Possession of Burglary Tools. For the following reasons, we affirm in part, reverse in part and remand for resentencing.
We affirm the defendant’s conviction and sentence for Armed Robbery, finding sufficient evidence in the record to support the defendant’s participation in the offense as a principal. See § 777.011, Fla.Stat. (1997).
We reverse the defendant’s conviction and sentence for Possession of a Firearm while Engaged in a Criminal Offense based upon the State’s candid and correct concession that it violates the defendant’s double jeopardy rights. Where, as here, the defendant’s Armed Robbery conviction was enhanced because of the defendant’s use of a firearm, the single act involving the use of the same firearm during the commission of the same robbery cannot form the basis of a separate conviction and sentence for Unlawful Possession of a Firearm while Engaged in a Criminal Offense. See Cleveland v. State, 587 So. 2d 1145 (Fla.1991).
We reverse the defendant’s conviction and sentence for Possession of Burglary Tools. While a screwdriver was found in the stolen vehicle’s center console, the State produced no evidence that the screwdriver was used to gain entry into the vehicle. At most, the evidence showed that the screwdriver was used as a “replacement key” to steal the vehicle after entry had been gained. While this evidence supported the defendant’s unchallenged conviction for Auto Theft, it did not support the defendant’s conviction for Possession of Burglary Tools. We find this case factually indistinguishable from Hierro v. State, 608 So. 2d 912, 915 (Fla. 3d DCA 1992), wherein this Court held that “[i]n order for the State to establish that the screwdriver was a burglary tool, the State needed to adduce testimony showing that the defendant used, or actually intended to use, the screwdriver to commit a burglary or a trespass.” See also Calliar v. State, 760 So. 2d 885 (Fla.1999).
The defendant’s conviction and sentence for Armed Robbery is affirmed, and his convictions and sentences for Unlawful Possession of a Firearm while Engaged in a Criminal Offense and Possession of Burglary Tools are reversed and this cause remanded with directions that the defen dant be resentenced in accordance with this opinion.
Affirmed in part, reversed in part and remanded with directions.
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Citator
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Dorsett v. State, 873 So. 2d 424 (Fla. 3d DCA 2004)…dant cannot be adjudicated guilty of both robbery with a firearm and possession of a firearm in commission of the same robbery. Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Bufford v. State, 803 So. 2d 914 (Fla. 3d DCA 2002); Buffington v. State, 776 So. 2d 960 (Fla. 3d DCA 2000). We find that the defendant’s remaining arguments on appeal lack merit. Therefore, we vacate the defendant’s conviction for possession of a firearm in the commission of the robbery, but affirm the defendant’s remaining conviction…
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Gonzalez v. State, 841 So. 2d 650 (Fla. 3d DCA 2003)…ols: In order for the State to establish the screwdriver was a burglary tool, the State needed to adduce testimony showing that the defendant used, or actually intended to use, the screwdriver to commit a burglary or trespass. Buffington v. State, 776 So. 2d 960, 961 (Fla. 3d DCA 2000), quoting Hierro v. State, 608 So. 2d 912, 915 (Fla. 3d DCA 1992). See also Calliar v. State, 760 So. 2d 885 (Fla.1999). Here, evidence of use of the screwdriver, or intent to use it, to commit a burglary or trespass is lackin…
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Henton v. State, 789 So. 2d 524 (Fla. 3d DCA 2001)…(Fla. 3d DCA 1992)(deciding a Defendant’s conviction of unlawful possession of firearm during commission of felony violated double jeopardy, where defendant was also convicted of attempted manslaughter with a firearm). See also Buffington v. State, 776 So. 2d 960 (Fla. 3d DCA 2000)(observing that where a robbery conviction is enhanced because of use of firearm in committing robbery, a single act involving use [*525] of same firearm in commission of same robbery cannot form basis of separate conviction and se…
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
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Hierro v. State, 608 So. 2d 912 (Fla. 3d DCA 1992)
- Daryell Calliar v. State, 760 So. 2d 885 (Fla. 1999)