EDWARD LEONARD WHITE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed a conviction for robbery, firearm possession, and aggravated assault, addressing whether a defendant can be separately sentenced for both robbery and display of a firearm during that robbery. The Court held that dual sentencing for the same conduct violates prior precedent and remanded for resentencing while affirming the conviction.
A defendant cannot be separately sentenced for robbery and display of a firearm during the commission of that robbery; such dual sentencing violates the principle established in Cone v. State. Prosecutors may properly comment during closing argument on the uncontradicted nature of evidence presented to the jury.
[1] A defendant convicted of both robbery and displaying a firearm during the commission of that robbery cannot be separately sentenced for each offense.
[2] A prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence during closing argument to the jury.
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Join FLexlaw to unlock all legal intelligence“The issue now presented to us is whether one who is convicted under such circumstances both of robbery and display of a firearm during the commission of that robbery can be separately sentenced for each offense. In Cone we answered this question in the negative and we now reaffirm that holding.”
Establishes the core legal issue and the Court's reaffirmation of precedent prohibiting dual sentencing for the same conduct
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Join FLexlaw to unlock all legal intelligenceEdward Leonard White was convicted of robbery, unlawful possession of a firearm while engaged in a criminal offense, and aggravated assault. He was se…
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ADKINS, Justice.
By petition for certiorari we have for review a decision of the Third District Court of Appeal (White v. State, 348 So. 2d 368 (Fla.3d DCA 1977)), which allegedly conflicts with a prior decision of the court (Cone v. State, 285 So. 2d 12 (Fla.1973)), and a subsequent decision of the court (Johnson v. State, 366 So. 2d 418 (Fla.1978)) on the same point of law. Art. Y, § 3(b)(3), Fla. Const. Appellant, defendant below, was convicted of robbery, unlawful possession of a firearm while engaged in a criminal offense, and aggravated assault. He was sentenced to life imprisonment for robbery, five years for the firearm charge and five years for the assault charge, all sentences [*MCCXXX] to run concurrently. His conviction was affirmed by the district court of appeal, the court holding that the sentence for display of a firearm during commission of a felony was proper. This issue has been resolved by this Court:
. The issue now presented to us is whether one who is convicted under such circumstances both of robbery and display of a firearm during the commission of that robbery can be separately sentenced for each offense. In Cone we answered this question in the negative and we now reaffirm that holding.
Johnson v. State, 366 So. 2d at 419.
The decision of the district court of appeal conflicts with the decisions cited above; we have jurisdiction.
The defendant also seeks reversal of his conviction on the basis of allegedly improper prosecutorial comment. There was only one witness to the crimes, other than the defendant. In referring to the testimony of the eye witness in closing argument, the prosecutor said, “You haven’t heard one word of testimony to contradict what she has said, other than the lawyer’s argument.” 348 So. 2d at 369. Defendant objected to this statement and moved for a mistrial. The motion for mistrial was denied and this ruling was affirmed by the district court of appeal. It is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue. State v. Jones, 204 So. 2d 515 (Fla.1967). See also State v. Mathis, 278 So. 2d 280 (Fla.1973). It is thus firmly embedded in the jurisprudence of this state that a prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence during argument to the jury. See State v. Jones, supra, at 516-517; Clinton v. State, 56 Fla. 57, 47 So. 389 (1908); Gray v. State, 42 Fla. 174, 28 So. 53 (1900); Mabery v. State, 303 So. 2d 369 (Fla.3d DCA 1974); Woodside v. State, 206 So. 2d 426 (Fla.3d DCA 1968).
That portion of the decision of the district court of appeal affirming the conviction is approved, but the portion affirming the sentence is quashed and the cause is remanded to the district court of appeal with instructions to affirm the conviction but vacate the sentence and remand same to trial court with instructions to impose an appropriate sentence.
It is so ordered.
ENGLAND, C. J., and BOYD, OVER-TON and SUNDBERG, JJ., concur.
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Citator
Cited By (66 total)
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Rodriguez v. State, 753 So. 2d 29 (Fla. 2000)…ments were “unrefuted” was fairly susceptible to being considered a comment on the defendant’s failure to testify). At least two appellate opinions have observed a tension between our decision in Marshall and our earlier decision in White v. State, 377 So. 2d 1149 (Fla.1979). See Dean v. State, 690 So. 2d 720, 724 n. 1 (Fla. 4th DCA 1997); Crawford v. State, 473 So. 2d 700, 702 (Fla. 4th DCA 1985) (Glickstein, J., specially concurring), quashed, 491 So. 2d 1142 (Fla.1986). In White, referring to the testimony…
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Barwick v. State, 660 So. 2d 685 (Fla. 1995)…ury’s attention to Barwiek’s failure to testify but merely directed the jury to consider the evidence presented. See Dufour v. State, 495 So. 2d 154, 160 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987); White v. State, 377 So. 2d 1149, 1150 (Fla.1979). In closing, defense counsel argued that the jury should consider the fact that although several officers were present at the time Barwick’s statement was taken, only one testified as to the conditions under which the statement was…
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Dufour v. State, 495 So. 2d 154 (Fla. 1986)…statement of the defense in its closing argument hinting that witness Miller had access to and could have based his testimony upon appellant’s “legal papers.” This comment merely referred to the lack of any evidence on the question, White v. State, 377 So. 2d 1149 (Fla.1979), and fell into the category of an “invited response” by the [*161] preceding argument of defense counsel concerning the same subject. State v. Mathis, 278 So. 2d 280 (Fla.1973). The trial court thus acted properly in denying these motions…
Previewing 3 of 66 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Gray v. State, 42 Fla. 174 (Fla. 1900)
- Johnson v. State, 366 So. 2d 418 (Fla. 1978)
- Buck Clinton and Edward Clinton v. State, 56 Fla. 57 (Fla. 1908)
- Woodside v. State, 206 So. 2d 426 (Fla. 3d DCA 1968)
- Diaz v. Warren, 303 So. 2d 369 (Fla. 3d DCA 1974)
- Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974)
- State v. Mathis, 278 So. 2d 280 (Fla. 1973)
- White v. State, 348 So. 2d 368 (Fla. 3d DCA 1977)