ARTHUR DEBOSE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE.
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Arthur DeBose appealed the denial of his postconviction motion claiming ineffective assistance of trial counsel under Florida Rule of Criminal Procedure 3.850. The Florida District Court of Appeal, Third District reversed the trial court's denial of one ground alleging a double jeopardy violation based on dual convictions for second degree murder and unlawful firearm possession arising from a single act, and remanded for further proceedings while affirming the denial of DeBose's remaining nine ineffective assistance claims.
The court reversed the denial of ground three regarding the double jeopardy violation, finding the record did not conclusively refute this claim, and remanded for the trial court to either grant an evidentiary hearing or attach necessary record portions demonstrating DeBose is not entitled to relief. The court affirmed the denial of the remaining nine ineffective assistance claims.
[1] A conviction and sentence for unlawful possession of a firearm while engaged in a criminal offense may violate double jeopardy principles if it arises from the same singl…
[2] A claim of ineffective assistance of counsel based on a double jeopardy violation is cognizable in a motion for postconviction relief.
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“The State cannot, consistent with double jeopardy principles, charge, convict and sentence a defendant with two substantive offenses for the single act of possession of one weapon.”
Establishes the controlling legal principle that dual convictions arising from a single act of firearm possession may violate double jeopardy protections
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Join FLexlaw to unlock all legal intelligenceDeBose was convicted of second degree murder and unlawful possession of a firearm while engaged in a criminal offense, receiving general life sentence…
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Arthur Debose appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. For the following reasons, we reverse as to the denial of ground three of the instant motion alleging ineffective assistance of trial counsel. Finding no error as to the denial of the remaining claims of ineffective assistance raised therein, we affirm without discussion.
Debose was convicted and sentenced for one count of second degree murder and one count of unlawful possession of a firearm while engaged in a criminal offense. On direct appeal, this Court affirmed Debose's convictions and sentences without prejudice to Debose raising ineffective assistance of trial counsel in a timely rule 3.850 motion. See Debose v. State, 163 So.3d 715 (Fla. 3d DCA 2015).
On September 6, 2016, Debose filed the instant rule 3.850 motion, later amended, raising therein what amounts to ten separate claims of ineffective assistance of trial counsel. After ordering a response from the State, the trial court entered an order denying all ten of the ineffective assistance claims, finding them to be either legally insufficient, not cognizable in a postconviction motion, or conclusively refuted by the record. Based on the record before us and the State's proper and commendable confession of error, we reverse as to the denial of ground three only.
In ground three, Debose claims that the general life sentences he received for his convictions for second degree murder and unlawful possession of a firearm while engaged in a criminal offense violate principles of double jeopardy. "The State cannot, consistent with double jeopardy principles, charge, convict and sentence a defendant with two substantive offenses for the single act of possession of one weapon." Williams v. State, 109 So.3d 831, 832 (Fla. 3d DCA 2013). Because it does not appear on the record before us that Debose's conviction for unlawful possession of a firearm while engaged in a criminal offense was ever vacated, we agree with the State that the record does not conclusively refute this claim.1
*1060We therefore remand for the trial court, with respect to ground three only, either to grant an evidentiary hearing or to attach the necessary portions of the record that conclusively show that Debose is not entitled to relief. We affirm the denial of the remainder of Debose's ineffective assistance of trial counsel claims without discussion.
Affirmed in part; reversed in part; remanded with instructions.
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Martin v. State, 252 So. 3d 333 (Fla. 3d DCA 2018)…on the record before us, we reverse and remand for the trial court to either grant an evidentiary hearing or attach portions of the record that conclusively refute Martin’s claims for ineffective assistance of trial counsel. See Debose v. State, 237 So. 3d 1059, 1060 (Fla. 3d DCA 2017) (reversing portion of the trial court’s order denying defendant’s ineffective assistance of trial counsel claim and remanding for the trial court to “either grant an evidentiary hearing or to attach the necessary portions…
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Talley v. State (Fla. 3d DCA 2025)
Authorities Cited
- Williams v. State, 109 So. 3d 831 (Fla. 3d DCA 2013)
- Debose v. State, 163 So. 3d 715 (Fla. 3d DCA 2015)