SAM WRIGHT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Sam Wright was convicted of carrying a concealed firearm, resisting an officer with violence, and unlawful possession of a firearm by a violent career criminal. The court reversed his conviction for unlawful possession of a firearm because the underlying statute was held unconstitutional in State v. Thompson, and remanded for retrial on a lesser included offense and for a new trial on the concealed firearm charge due to a plea agreement condition.
The court reversed Wright's conviction for unlawful possession of a firearm by a violent career criminal because the statute creating that offense (chapter 95-182, Laws of Florida) was held unconstitutional in State v. Thompson. The court remanded for retrial on the lesser included offense of possession of a firearm by a convicted felon. Additionally, because an express condition of Wright's plea agreement required reversal of his concealed firearm conviction if his career criminal possession conviction were reversed, the court also reversed his concealed firearm conviction and remanded for a new trial on that count.
[1] A statute declared unconstitutional renders the crime it defines non-existent.
[2] When a conviction for a crime is reversed due to the unconstitutionality of the underlying statute, the proper remedy is to remand for retrial on any lesser included offe…
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Join FLexlaw to unlock all legal intelligence“the State does not dispute Wright's argument that the trial court erred in adjudicating him guilty of possession of a firearm by a violent career criminal”
Establishes that the State conceded the constitutional error regarding the unlawful possession charge
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Join FLexlaw to unlock all legal intelligenceSam Wright was convicted and sentenced for carrying a concealed firearm, resisting an officer with violence, and unlawful possession of a firearm by a…
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PER CURIAM.
We grant the motion for clarification, withdraw our opinion filed on January 31, 2001, and substitute the following:
Sam Wright was convicted and sentenced for carrying a concealed firearm, resisting an officer with violence, and unlawful possession of a firearm/weapon by a violent career criminal. He challenges his conviction for unlawful possession of a firearm. Based on State v. Thompson, 750 So. 2d 643 (Fla.1999), the State does not dispute Wright’s argument that the trial court erred in adjudicating him guilty of possession of a firearm by a violent career criminal. In Thompson, the Supreme Court held unconstitutional chapter 95-182, Laws of Florida, and thus rendered the unlawful possession charge a non-existent crime. See Levan v. State, 759 So. 2d 683 (Fla.2000) (noting that the offense of possession of a firearm by a violent career criminal was created through the passage of chapter 95-182). Pursuant to Thomas v. State, 777 So. 2d 957, 26 Fla. L. Weekly S51 (Fla. Jan. 18, 2001), the proper remedy is to remand the case for retrial on any lesser included offense actually instructed on at trial. As the jury here was instructed on the lesser offense of possession of a firearm by a convicted felon, we remand for retrial on that charge.
Wright had entered a no contest plea to carrying a concealed firearm. An express condition of his plea agreement requires that the concealed firearm conviction be reversed for a new trial in the event Wright’s conviction for possession of a firearm by a career criminal is reversed. As we are reversing Wright’s conviction for unlawful possession of a firearm, we must also reverse his conviction for carrying a concealed firearm and remand for a new trial on that count.
Reversed and remanded.
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Citator
Authorities Cited
- State v. Thompson, 750 So. 2d 643 (Fla. 1999)
- Levan v. State, 759 So. 2d 683 (Fla. 2000)
- Thomas v. State, 777 So. 2d 957 (Fla. 2001)