PHILLIP MICHAEL THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phillip Thomas was convicted of one count of aggravated assault with a firearm and two counts of improper exhibition of a firearm following a single criminal episode. The appellate court reversed one of the improper exhibition convictions, holding that Florida's double jeopardy protections prohibit multiple convictions for the lesser-included offense when based on a single criminal act.
A defendant may be convicted of only a single count of improper exhibition of a firearm when the convictions are based on a single criminal episode, as the statute prohibits exhibition in the presence of one or more persons. Therefore, one of Thomas's two convictions for improper exhibition of a firearm must be reversed.
[1] A double jeopardy violation is a fundamental error that may be raised for the first time on appeal.
[2] Florida Statutes § 790.10 prohibits the exhibition of a firearm in the presence of one or more persons.
Previewing 2 of 4 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“although Mr. Thomas could have been convicted of multiple 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.”
Establishes the controlling principle that lesser-included offense convictions are limited to a single conviction per criminal episode.
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Join FLexlaw to unlock all legal intelligenceThomas displayed a firearm in the presence of a woman and her two children after being told to leave their home during a single criminal episode. He w…
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Phillip M. Thomas was charged, inter alia, with three counts of aggravated assault with a firearm. The offenses took place during the same criminal episode when Mr. Thomas displayed a firearm in the presence of a woman and her two children after being told to leave their home. Following a trial, Mr. Thomas was convicted of one count of aggravated assault with a firearm and two counts of the lesser offense of improper exhibition of a firearm. Appellate counsel filed an An-ders1 brief. In his pro se brief, Mr. Thomas asserts that his conviction of two counts of improper exhibition of a firearm violates his protections against double jeopardy. A double jeopardy violation is a fundamental error that may be raised for the first time on appeal. See State v. Johnson, 483 So.2d 420 (Fla.1986).
Section 790.10, Florida Statutes (2012), prohibits the exhibition of a firearm or other weapon “in the presence of one or more persons.” Accordingly, although Mr. Thomas could have been convicted of multiple 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 exhibition of a firearm when those convictions were based on entirely discreet actions sufficiently separate in time and space, to support dual convictions. Having carefully considered the facts presented here, we disagree with the State and conclude that this case is more similar to Roberts and Bass, not Sanders. Therefore, we reverse the judgment and sentence for one count of improper exhibition of a firearm and remand for the trial court to vacate the conviction. Resentencing is not required.
AFFIRMED in part; REVERSED in part; and REMANDED.
GRIFFIN and COHEN, JJ„ concur.
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Gross v. State, 138 So. 3d 590 (Fla. 5th DCA 2014)…as sentenced to a concurrent twenty-year minimum mandatory sentence on Count II. A. double jeopardy violation does not have to be preserved for appeal because it is fundamental error that can be raised for the first time on appeal. Thomas v. State, 101 So. 3d 917, 918 (Fla. 5th DCA 2012). On appeal, Gross argues that because his conviction for attempted second-degree murder was reclassified based on his possession of a destructive device, double jeopardy precluded his conviction on Count II. We agree. See,…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009)
- 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)
- Sanders v. State, 795 So. 2d 223 (Fla. 4th DCA 2001)
- Roberts v. State, 47 So. 3d 380 (Fla. 2d DCA 2010)