JERRY S. ODUM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry Odum was convicted of three felonies: breaking and entering with intent to commit petit larceny, using a firearm in commission of a felony, and possession of a firearm by a convicted felon. The appellate court reversed the conviction for using a firearm in the commission of a felony due to insufficient evidence, but affirmed the other two convictions.
The conviction for using or displaying a firearm in the commission of a felony was reversed due to lack of evidence that the firearm was used or displayed in commission of the breaking and entering. The convictions for breaking and entering with intent to commit petit larceny and possession of a firearm by a convicted felon were affirmed because there was ample evidence for the former and the latter constituted a separate, distinct transaction.
[1] A conviction for using a firearm in the commission of a felony requires evidence that the firearm was used or displayed during the commission of the underlying felony.
[2] A conviction for breaking and entering a building with intent to commit a misdemeanor can be affirmed if there is sufficient evidence of the breaking and entering and the…
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 record is devoid of any evidence that Odum used or displayed the firearm in the commission of the felony of B & E with intent to commit a misdemeanor. Therefore, the judgment and sentence on this charge must be reversed.”
Establishes the basis for reversing the firearm use conviction—lack of evidence connecting the firearm to the felony itself.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTwo business owners returned to their place of business at an unusual hour and encountered a man with a gun who claimed to be a policeman checking the…
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HOBSON, Acting Chief Judge.
Appellant was tried, convicted and adjudged guilty of three crimes. On the charge of breaking and entering a building other than a dwelling house with intent to commit a misdemeanor, to wit, petit larceny, he was sentenced to be confined in the state prison for a term of five years. On the charge of using a firearm in the commission of a felony, to wit, breaking and entering a building, he was sentenced to an additional term of five years in prison, to run consecutively with the breaking and entering sentence; and on the charge of possession of a firearm by a convicted felon he was sentenced to a term of five years, to run concurrently with the sentence on the charge of using a firearm in the commission of a felony.
Two persons returned to their place of business at an unusual hour when a man with a gun opened a door inside the building, said he was a policeman checking the place out and wanted to know what they were doing there. He put the gun away and indicated he was going around to check the back. He then took off. Odum was identified as the man.
The record is devoid of any evidence that Odum used or displayed the firearm in the commission of the felony of B & E with intent to commit a misdemeanor. Therefore, the judgment and sentence on this charge must be reversed.
There was ample evidence to convict Odum on the charge of B & E with intent to commit a misdemeanor and the judgment and sentence on this charge is affirmed.
The charge of possession of a firearm by a felon was a separate and distinct charge from the breaking and entering charge and the use of the firearm in the commission of a felony charge, because the possession was not limited to the time these offenses allegedly took place. The evidence established that the firearm was in appellant’s possession sometime prior to and after the alleged commission of the other offenses. Therefore, it constitutes a different transaction. Cf. Foster v. State, Fla.1973, 286 So. 2d 549; Cone v. State, Fla.1973, 285 So. 2d 12.
The other points on appeal have been considered and have been found to be without merit, or if error were committed it was harmless.
The judgment and sentence on th'e charge of using or displaying a firearm in the commission of a felony are reversed. The judgments and sentences on the two remaining charges are affirmed.
Reversed in part and affirmed in part.
McNULTY and BOARDMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sloan v. State, 438 So. 2d 888 (Fla. 2d DCA 1983)…hand on it as if to draw it when a policeman approached the shop. Under the circumstances there was sufficient evidence for the jury to conclude that appellant’s display of the gun played a part in the accomplishment of the theft. Cf. Odum v. State, 289 So. 2d 430 (Fla. 2d DCA 1974) (in which no intimidation was involved and where, at the time the defendant displayed his gun pretending to be a policeman, his crime of breaking and entering with intent to commit a misdemeanor had already been consummated). AFF…
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Saunders v. State, 291 So. 2d 640 (Fla. 2d DCA 1974)…PER CURIAM. Affirmed. See Odum v. State (Fla.App.2d, 1974), 289 So. 2d 430. HOBSON, A. C. J., and McNULTY and BOARDMAN, JJ., concur.…
Authorities Cited
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Foster v. State, 286 So. 2d 549 (Fla. 1973)