JAMES DION MCCOY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Dion McCoy appeals his convictions for attempted first-degree murder, attempted felony murder, armed false imprisonment, and carjacking with a deadly weapon. The appellate court reversed the attempted felony murder conviction as duplicative under double jeopardy principles and reversed the sentences based on an erroneous habitual violent felony offender (HVFO) enhancement, but affirmed the remaining convictions.
The court reversed the attempted felony murder conviction because allowing both convictions to stand violated double jeopardy principles. The court reversed the HVFO sentences because the State failed to establish that McCoy's prior aggravated assault conviction involved a deadly weapon, which is required for the HVFO enhancement. The court affirmed the remaining convictions but vacated the sentences for resentencing.
[1] A conviction for attempted felony murder based on the same facts as attempted first-degree murder violates double jeopardy.
[2] A prior conviction for aggravated assault does not qualify as a predicate felony for habitual violent felony offender status unless the assault was committed with a deadl…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To allow the convictions for both charges to stand would violate double jeopardy.”
Establishes that concurrent convictions for attempted first-degree murder and attempted felony murder based on identical facts violate constitutional double jeopardy protection.
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Join FLexlaw to unlock all legal intelligenceMcCoy was convicted of attempted first-degree murder with a weapon, attempted felony murder in the first degree with a weapon, armed false imprisonmen…
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FULMER, Chief Judge.
James Dion McCoy appeals his convictions and sentences for attempted first-degree murder with a weapon, attempted felony murder in the first degree with a weapon, armed false imprisonment with a weapon, and carjacking with a deadly weapon. He raises six issues on appeal. We reject all but two. We reverse the conviction for attempted felony murder and remand for the trial court to vacate the conviction. On the remaining counts, we affirm the convictions but reverse the sentences imposed and remand for resentencing.
McCoy argues and the State concedes that the trial court erred in not dismissing the attempted felony murder charge where that charge is based on the same facts underlying the attempted first-degree murder charge. To allow the convictions for both charges to stand would violate double jeopardy. See Gordon v. State, 780 So. 2d 17, 25 (Fla.2001); McGlocklin v. State, 907 So. 2d 1288, 1291 (Fla. 3d DCA 2005); Jackson v. State, 868 So. 2d 1290 (Fla. 4th DCA 2004); Deangelo v. State, 863 So. 2d 374, 375 (Fla. 1st DCA 2003). On remand, therefore, the trial court must vacate the attempted felony murder conviction and ensure that this charge is not reflected on the new sentencing documents.
McCoy argues and again the State concedes that the trial court erred in finding McCoy to be a habitual violent felony offender (HVFO) and enhancing his sentence on that basis. The State presented evidence of McCoy’s prior conviction for aggravated assault. However, only aggravated assault with a deadly weapon is an enumerated predicate felony for the HVFO statute. § 775.084(l)(b)(l)(g), Fla. Stat. (2002). Because aggravated assault can be committed in two ways, either by committing an assault with a deadly weapon or with an intent to commit a felony, § 784.021(1), Fla. Stat. (2002), and the State did not establish that McCoy’s prior conviction was committed with a deadly weapon, there was insufficient evidence for the trial court to find that McCoy qualified for the HVFO designation. We, therefore, reverse the HVFO sentences imposed for all remaining counts and remand for re-sentencing pursuant to the Criminal Punishment Code.
McCoy has also raised an issue regarding the scoring of the primary offense. Although the argument was preserved, it was not addressed by the trial court and the State has not responded to the argument in its answer brief. Nevertheless, we reject the argument because it appears that the primary offense was properly scored. See § 775.087(1), Fla. Stat. (2002).
Affirmed in part, reversed in part, and remanded with directions.
WHATLEY and WALLACE, JJ., Concur.
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Howard v. State, 245 So. 3d 962 (Fla. 1st DCA 2018)
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Smith v. State, 973 So. 2d 1209 (Fla. 2d DCA 2008)…gly, while we affirm Smith’s other convictions and sentences, we reverse Smith’s attempted felony murder conviction and sentence and remand with directions to the trial court to vacate that conviction in accord with this opinion. See McCoy v. State, 942 So. 2d 919, 920 (Fla. 2d DCA 2006). Affirmed in part and reversed in part. ALTENBERND and STRINGER, JJ., Concur.…
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Donaldson v. State, 41 So. 3d 332 (Fla. 1st DCA 2010)…t with a deadly weapon. § 775.084(l)(b)(l)(g), Fla. Stat. (2000). At sentencing, in order to support a habitual felony violent offender sentence, the state must show that the aggravated assault was committed with a deadly weapon. See McCoy v. State, 942 So. 2d 919 (Fla. 2d DCA 2006). The postconviction court has failed to attach any records refuting the appellant’s claim that his prior offense of aggravated assault on a law enforcement officer does not qualify for a habitualized sentence. Accordingly, we re…
Authorities Cited
- Bryon Gordon v. State, 780 So. 2d 17 (Fla. 2001)
- Royal Jackson v. State, 868 So. 2d 1290 (Fla. 4th DCA 2004)
- Ladson v. State, 907 So. 2d 1288 (Fla. 2d DCA 2005)
- Deangelo v. State, 863 So. 2d 374 (Fla. 1st DCA 2003)