NICHOLAS MICHAEL ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a conviction for improper exhibition of a firearm as a lesser-included offense violates double jeopardy when based on the same conduct as another conviction for the same offense.
The defendant pointed a firearm at two men during a dispute. The jury found him guilty of improper exhibition of a firearm as a lesser offense for two…
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Nicholas Michael Roberts appeals his judgments and sentences for two counts of improper exhibition of a firearm. We affirm one judgment and sentence but order that the second judgment and sentence be vacated on remand because it violates double jeopardy.
Mr. Roberts was charged with two counts of aggravated assault with a firearm. He was working as a taxi driver when he got into a dispute with two men who were in a pickup truck that was parked near his taxi. He told the men to leave and pointed a firearm at them, stating that he could shoot them.
When the case was submitted to the jury, the misdemeanor offense of improper exhibition' of a firearm was listed as a lesser offense for each aggravated assault. The jury found Mr. Roberts guilty of improper exhibition of a firearm as a lesser offense for both counts. The trial court entered judgments for both convictions and sentenced Mr. Roberts to concurrent terms of probation.
Section 790.10, Florida Statutes (2007), prohibits the exhibition of a firearm “in the presence of one or more persons.” Accordingly, although Mr. Roberts could have been convicted of two aggravated assaults if the jury had fully accepted the State’s case, see, e.g., Mauldin v. State, 9 So.3d 25, 28 (Fla. 4th DCA 2009), the verdict for the lesser-included offense permits only a single conviction. See Bass v. State, 739 So.2d 1243, 1246 (Fla. 5th DCA 1999); Canion v. State, 661 So.2d 931, 931 (Fla. 4th DCA 1995). Therefore, we reverse the judgment and sentence for the second count of improper exhibition of a firearm and remand for the trial court to vacate the conviction.
*381Affirmed in part, reversed in part, and remanded.
KELLY and BLACK, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thomas v. State, 101 So. 3d 917 (Fla. 5th DCA 2012)…tiple counts of aggravated assault if the jury had fully accepted the State’s case, see, e.g., Mauldin v. State, 9 So. 3d 25, 28 (Fla. 4th DCA 2009), the verdict for the lesser-included offense permits only a single conviction. See Roberts v. State, 47 So. 3d 380, 380 (Fla. 2d DCA 2010); Bass v. State, 739 So. 2d 1243, 1246 (Fla. 5th DCA 1999). The State argues that this case is factually similar to Sanders v. State, 795 So. 2d 223 (Fla. 4th DCA 2001), which allowed multiple convictions for improper exhibit…
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Lambert v. State, 200 So. 3d 1295 (Fla. 2d DCA 2016)…xpress wording proscribes the act of exhibiting the weapon in the presence of one or more persons. We approve the interpretation of section 790.10 ... that pre- [*1296] eludes multiple convictions for a single act of exhibition.”); Roberts v. State, 47 So. 3d 380, 380 (Fla. 2d DCA 2010) (holding that improper exhibition of a firearm by a taxi driver who had gotten into a dispute with two men in a pickup truck could only support a single conviction of that offense under the language of section 790.10); Bass v…
Authorities Cited
- Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009)
- Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995)
- Leila A. Hyman and Stuart L. Hyman v. Sawgrass Lakes Homeowners Ass'n, Inc., 739 So. 2d 1243 (Fla. 4th DCA 1999)
- Bass v. State, 739 So. 2d 1243 (Fla. 5th DCA 1999)