ROBERT LEE HENTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed defendant's conviction for unlawful possession of firearm during commission of felony because it violated double jeopardy where he was also convicted of manslaughter with a firearm based on the same act.
A defendant cannot be convicted of both unlawful possession of a firearm during commission of a felony and manslaughter with a firearm where both convictions stem from the same act.
[1] A defendant cannot be convicted of both unlawful possession of a firearm during commission of a felony and manslaughter with a firearm based on the same act, as such conv…
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of both unlawful possession of a firearm during commission of a felony and manslaughter with a firearm.…
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Based upon our independent review of the record, as well as the State’s candid and correct confession of error, we agree with Defendant that his conviction of unlawful possession of firearm during commission of felony violated double jeopardy, where he was also convicted of manslaughter with a firearm. See Cleveland v. State, 587 So. 2d 1145 (Fla.1991)(concluding that a person could not be convicted of both attempted robbery with a firearm and use of a firearm while committing a felony where the charges stem from a single act); McGahee v. State, 600 So. 2d 9 (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 of same firearm in commission of same robbery cannot form basis of separate conviction and sentence for use of firearm while committing felony); Allen v. State, 643 So. 2d 87 (Fla. 3d DCA 1994)(concluding double jeopardy rights of defendant were violated by enhancing manslaughter conviction for weapons use while independently convicting defendant for weapons possession).
Accordingly, we reverse the conviction for possession of a firearm in the commission of a felony and remand the case for resentencing.
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Smith v. State, 839 So. 2d 738 (Fla. 3d DCA 2003)…urder). The State concedes, and we agree, that the defendant’s conviction and sentence, for unlawful possession of a firearm during the commission of a felony, constitutes a violation of the defendant’s double jeopardy rights. See Henton v. State, 789 So. 2d 524 (Fla. 3d DCA 2001). See also Cleveland v. State, 587 So. 2d 1145 (Fla.1991). Accordingly, finding no other meritorious point on appeal, we vacate the defendant’s judgment with regard to the unlaw [*739] ful possession of a firearm conviction, and…
Authorities Cited
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Allen v. State, 643 So. 2d 87 (Fla. 3d DCA 1994)
- McGAHEE v. State, 600 So. 2d 9 (Fla. 3d DCA 1992)
- Buffington v. State, 776 So. 2d 960 (Fla. 3d DCA 2000)