TIMOTHY GROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Gross appealed his convictions for attempted second-degree murder with a destructive device and possession and discharge of a destructive device. The Florida Fifth District Court of Appeal affirmed the attempted second-degree murder conviction but vacated the destructive device conviction on double jeopardy grounds, finding that the firearm/destructive device enhancement cannot support an independent conviction for the same conduct.
Double jeopardy principles require that the conviction for possession and discharge of a destructive device be vacated. A defendant cannot be separately convicted and sentenced for weapon possession when that same weapon conduct is the basis for enhancing a separate felony conviction.
[1] Double jeopardy principles preclude conviction for possession and discharge of a destructive device when the underlying felony conviction has already been enhanced based…
[2] A double jeopardy violation is fundamental error and need not be preserved for appeal.
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“where defendant's felony convictions were reclassified and enhanced due to defendant's use of firearm in committing the crimes, single act of using that same firearm in the commission of those felonies as basis of separate sentence and conviction for use of firearm while committing a felony violated double jeopardy clause”
Establishes the core double jeopardy principle that a weapon cannot be the basis for both enhancement of a felony and an independent conviction
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Join FLexlaw to unlock all legal intelligenceGross placed an improvised explosive device in a package at a victim's front door. A jury found him guilty of the lesser included offense of attempted…
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Timothy Gross appeals his judgment and sentences for attempted second-degree murder with a destructive device and possession and discharge of a destructive device. We affirm, without discussion, the attempted second-degree murder conviction. However, we conclude that double *591jeopardy principles require us to vacate Gross’ conviction for possession and discharge of a destructive device.1
Gross was charged by amended information with attempted first-degree murder with possession and discharge of a destructive device (Count I) and possession of and discharge of a destructive device (Count II) after placing an “improvised explosive device” in a package at the front door of the victim’s residence.2 On Count I, the jury found Gross guilty of the lesser included offense of attempted second-degree murder with a special finding that Gross actually possessed and discharged a destructive device in the course of committing the offense. Gross was found guilty as charged on Count II.
The trial court enhanced the attempted second-degree murder charge from a second-degree felony to a first-degree felony for use of a weapon pursuant to section 775.087(l)(b), Florida Statutes (2009), and sentenced Gross to thirty years’ imprisonment in the Department of Corrections.3 Pursuant to section 775.087(2)(a)2., Florida Statutes (2009), twenty of those years were imposed as a minimum mandatory sentence.4 Gross was 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, e.g., Mendoza v. State, 941 So.2d 523 (Fla. 3d DCA 2006) (double jeopardy rights of defendant were violated where use of firearm was basis for enhancing attempted first-degree murder conviction from first-degree felony to life felony and defendant was then independently convicted for possession of firearm during commission of felony); Law v. State, 824 So.2d 1055 (Fla. 5th DCA 2002) (where defendant’s felony convictions were reclassified and enhanced due to defendant’s use of firearm in committing the crimes, single act of using that same firearm in the commission of those felonies as basis of separate sentence and conviction for use of firearm while committing a felony violated double jeopardy clause); Bradshaw v. State, 528 So.2d 473 (Fla. 1st DCA 1988) (upon enhancement of murder and attempted murder convictions based on ap*592plication of firearms enhancement statute, charge of possession of firearm during commission of felony became lesser-inelud-ed offense and thus, defendant could not properly be convicted of firearm possession charge).
Accordingly, Gross is entitled to have his conviction for possession and discharge of destructive device vacated.
AFFIRMED, in part, REVERSED, in part; and REMANDED.
COHEN and WALLIS, JJ„ concur.
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Cited By
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Holubek v. State, 173 So. 3d 1114 (Fla. 5th DCA 2015)…ea colloquy, he waived his right to appeal but did not expressly waive his right to appeal a double jeopardy violation. A double jeopardy violation can be raised for the first time on appeal because it constitutes fundamental error. Gross v. State, 138 So. 3d 590, 591 (Fla. 5th DCA 2014). However, the entry of a plea and subsequent adjudication of guilt ordinarily precludes an attack premised on a violation of double jeopardy. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989).…
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Wright v. State, 268 So. 3d 208 (Fla. 2d DCA 2019)
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Kraig Alan Schoonover v. State, 176 So. 3d 994 (Fla. 5th DCA 2015)…ssion of a felony); Boschen v. State, 647 So. 2d 1054, 1055 (Fla. 5th DCA [*996] 1994) (trafficking in cannabis enhanced under section 775.087(2)(a) for possession of a firearm precluded conviction for possession of machine gun). In Gross v. State, 138 So. 3d 590 (Fla. 5th DCA 2014), this court relied on similar cases involving firearm enhancements to vacate a conviction for possession and discharge of a destructive device where the defendant’s conviction for attempted second-degree murder was “reclassified”…
Authorities Cited
- Jerail L. LAW v. State, 824 So. 2d 1055 (Fla. 5th DCA 2002)
- Bradshaw v. State, 528 So. 2d 473 (Fla. 1st DCA 1988)
- Mendoza v. State, 941 So. 2d 523 (Fla. 3d DCA 2006)
- Thomas v. State, 101 So. 3d 917 (Fla. 5th DCA 2012)