ROBERT JACOB HEISTERMAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Heisterman was convicted by jury of assault with intent to commit murder and shooting into an occupied dwelling, receiving consecutive sentences. The Florida appellate court affirmed the assault conviction but reversed the shooting conviction, holding that both charges arose from a single criminal act and therefore could not support dual convictions.
The court affirmed the assault with intent to commit murder conviction but reversed the shooting into an occupied dwelling conviction. The court held that because both offenses arose from a single criminal act (the shooting), the defendant could not be convicted and sentenced on both charges. All other alleged trial errors were found to present no reversible error.
[1] A motion to dismiss an information may be properly considered by the trial judge in conjunction with a Statement of Particulars.
[2] Sufficiency of evidence and a defendant's mental competency at the time of offenses or trial are not reversible error if not presented in the trial court.
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Join FLexlaw to unlock all legal intelligence“We hold that the trial judge properly considered the Statement of Particulars at the time the motion was presented.”
Establishes that trial court properly denied motion to dismiss by considering the Statement of Particulars
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Join FLexlaw to unlock all legal intelligenceHeisterman was found guilty by jury of assault with intent to commit murder in the first degree and shooting into an occupied dwelling. He received a …
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PER CURIAM.
The appellant was found guilty by a jury of: (1) assault with intent to commit murder in the first degree, and (2) shooting into an occupied dwelling. He received a sentence of five years in the state prison on the first charge and a sentence of five years probation on the second charge, the sentences to run consecutively.
Six points have been raised on this appeal. Each will be discussed briefly in the order presented. The first point urges error upon the denial of defendant’s motion to dismiss the information on the ground that the information does not state sufficient facts. See Hamilton v. State, 129 Fla. 219, 176 So. 89, 112 A.L.R. 1013 (1937). We hold that the trial judge properly considered the Statement of Particulars at the time the motion was presented. See State v. Davis, Fla.1971, 243 So. 2d 587. There was no error in denying the motion to dismiss the information. See State v. Moss, Fla.App.1968, 206 So. 2d 692.
The second point questions the sufficiency of the evidence to support the verdict. This point is argued with the third point, which urges that the cumulative effect of all the evidence raises a doubt as to che defendant’s mental competency botn at the time of the offenses and the time of trial. Neither of these points presents reversible error. See Martin v. State, Fla. App.1975, 323 So. 2d 666. It should be noted that these points were not presented in the trial court. See State v. Barber, Fla. 1974, 301 So. 2d 7.
Appellant’s fourth point challenges the propriety of the charge to the jury. In view of defendant’s failure to object to the charge, either in full or in any particular, the point does not present reversible error. See FAR 6.7(g).
The fifth point claims that the defendant did not receive a fair trial because of the vigorous cross-examination he sus tained when he took the stand. Our reading of the record shows a single objection to cross-examination and convinces us that the cross-examination was proper. See Cross v. State, 96 Fla. 768, 119 So. 380 (1928).
The sixth point urges that the facts proved only one criminal act (i.e., the shooting) and, therefore, that the defendant may not be convicted of two separate offenses because of the single criminal act. We agree and reverse upon the authority of Cone v. State, Fla.1973, 285 So. 2d 12; and Yost v. State, Fla.App.1971, 243 So. 2d 469. Accordingly, we reverse the judgment and sentence as to the charge of shooting into an occupied dwelling in violation of Fla.Stat. § 790.19.
The judgment and sentence on count one is affirmed.
Affirmed in part and reversed in part.
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Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978)…lty of two lesser included offenses of grand larceny which were part of higher robbery offenses for which defendant was also convicted. See also Sloan v. State, 323 So. 2d 278 (Fla.2d DCA 1975) (assault merged into robbery). In Heisterman v. State, 327 So. 2d 839 (Fla.3d DCA 1976), the defendant committed only one criminal act in shooting into the occupied dwelling and the court, holding that only the assault with intent to commit murder would be upheld, reversed the conviction for shooting into the dwelling…
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Hegstrom v. State, 388 So. 2d 1308 (Fla. 3d DCA 1980)…s were in silent disarray. Corn-pare Ennis v. State, 364 So. 2d 497 (Fla. 2dDCA 1978); Hernandez v. State, 278 So. 2d 307 (Fla. 2dDCA 1973); Yost v. State, 243 So. 2d 469 (Fla. 3dDCA 1971) (setting aside the sentence only), with Heisterman v. State, 327 So. 2d 839 (Fla. 3dDCA 1976); and Sloan v. State, 323 So. 2d 278 (Fla. 2dDCA 1975) (setting aside the judgment). Only Kimbrough v. State, 356 So. 2d 1294 (Fla. 4thDCA 1978), and, to a lesser extent, Taylor v. State, 330 So. 2d 44 (Fla. IstDCA 1976), openly add…
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State v. Heisterman, 343 So. 2d 1272 (Fla. 1977)…We here review the decision of the Third District Court of Appeal, reported at 327 So. 2d 839, insofar as it holds that-respondent was improperly convicted and sentenced for two separate offenses because “the facts proved [at trial constitute] only one criminal act . .”1 The respondent was convicted and sentenced for shooting a gun into an…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Cross v. State, 96 Fla. 768 (Fla. 1928)
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Augusta Hamilton v. State, 129 Fla. 219 (Fla. 1937)
- State v. Davis, 243 So. 2d 587 (Fla. 1971)
- Martin v. State, 323 So. 2d 666 (Fla. 3d DCA 1975)
- State v. Moss, 206 So. 2d 692 (Fla. 2d DCA 1968)