OTIS WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of possession of a firearm by a convicted felon, assault with intent to commit murder, and shooting within an occupied building, and received three consecutive 15-year sentences. The First District Court of Appeal affirmed, holding that separate sentences may be imposed for the firearm possession offense and the other offenses because they involve separate and distinct elements.
Separate sentences may be imposed for possession of a firearm by a convicted felon and the offenses of assault with intent to commit murder and shooting within an occupied building because these offenses involve separate and distinct elements. The firearm possession offense is completed upon mere possession, while the other offenses require proof of actual use of the firearm.
[1] Separate sentences may be imposed for possession of a firearm by a convicted felon and for assault with intent to commit murder or shooting within an occupied building, e…
[2] The offense of possession of a firearm by a convicted felon is completed upon a convicted felon coming into possession of a firearm.
Previewing 2 of 3 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“separate sentences may be imposed for the offenses of breaking and entering with intent to commit a misdemeanor and possession of a firearm by a convicted felon”
Establishes the court's prior precedent supporting separate sentences for firearm possession with other offenses
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn August 26, 1972, appellant shot a clerk at a Jiffy Food Store. Later that same day, appellant went to the Fellowship of Men's Club, had an argument…
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BOYER, Chief Judge.
After a jury trial, appellant was found guilty and sentenced to three consecutive 15-year sentences. The issue raised in this appeal from the denial of appellant’s motion to vacate and set aside judgment and sentence is whether separate sentences may be imposed for possession of a firearm by a convicted felon, on the one hand, and shooting within an occupied building and assault with intent to commit murder, on the other hand.
Appellant was tried for offenses emanating from two separate incidents occurring on August 26, 1972. Regarding the first incident, the evidence indicated that appellant shot the clerk of a Jiffy Food Store. Later that same day, appellant went to the Fellowship of Men’s Club, had an argument with and shot at Gilbert Crowell, and fired several more shots into the Men’s Club building before fleeing.
Appellant argues that his sentence for possession of a firearm by a convicted felon should be vacated since that offense constitutes a facet of the same transaction of the offenses of assault with intent to commit murder and shooting within an occupied building. Appellant relies on Panzavecchia v. State, Fla.App.3rd 1975, 311 So. 2d 782. In that case, our sister court held that separate sentences could not be imposed for the offenses of second degree murder and possession of a firearm by a convicted felon where the offenses arose out of the same transaction.
We must respectfully disagree with the Third District’s holding in Panzavecchia. We have previously held that separate sentences may be imposed for the offenses of breaking and entering with intent to commit a misdemeanor and possession of a firearm by a convicted felon. (Yates v. State, Fla.App.1st 1975, 317 So. 2d 462). Sub judi-ce, the offenses for which appellant was convicted involved separate and distinct elements. The crime of possession of a firearm by a convicted felon was completed when appellant, a convicted felon, came into possession of a firearm. The other two offenses for which appellant was convicted, assault with intent to commit murder and shooting within an occupied building, necessitated proof of the use of a firearm, which is something more than mere possession. (See also Copeland v. State, Fla.App.2nd 1976, 336 So. 2d 653).
AFFIRMED.
RAWLS and McCORD, JJ., concur.
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Borges v. State, 415 So. 2d 1265 (Fla. 1982)…la.1977); State v. Ray, 331 So. 2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975); Estevez v. State, 313 So. 2d 692 (Fla.1975); Foster v. State, 286 So. 2d 549 (Fla.1973); Cone v. State, 285 So. 2d 12 (Fla.1973); Williams v. State, 337 So. 2d 1038 (Fla. 1st DCA 1976), aff’d, 346 So. 2d 67 (Fla.1977); Swyers v. State, 334 So. 2d 278 (Fla. 3d DCA 1976); Panzavecchia v. State, 311 So. 2d 782 (Fla. 3d DCA 1975); Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971). Section 775.021(4), Florida Statut…
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Johnson v. State, 366 So. 2d 418 (Fla. 1978)…ay cannot have overruled Cone any more than Estevez or Jenkins did. The holdings in Estevez and Jenkins were “reaffirmed” by our decision in Williams v. State, 346 So. 2d 67 (Fla.1977). We there adopted the decision of the district court of appeal, 337 So. 2d 1038 (Fla. 1st DCA 1976), and specifically overruled Panzavecchia v. State, 311 So. 2d 782 (Fla. 3d DCA 1975). The two offenses in Panzavecchia were first degree murder and possession of a firearm by a convicted felon. The district court had held that th…
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Williams v. State, 346 So. 2d 67 (Fla. 1977)…PER CURIAM. We adopt the decision of the First District Court of Appeal reported at 337 So. 2d 1038 (Fla. 1st DCA 1976), and affirm the conviction on the authority of Estevez v. State, 313 So. 2d 692 (Fla.1975), and Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975). We reaffirm our holding in Estevez and Jenkins and overrule Panzavecchia v. State,…
Authorities Cited
- Panzavecchia v. State, 311 So. 2d 782 (Fla. 3d DCA 1975)
- Yates v. State, 317 So. 2d 462 (Fla. 1st DCA 1975)
- Copeland v. State, 336 So. 2d 653 (Fla. 2d DCA 1976)