THE STATE OF FLORIDA, PETITIONER,
v.
ROBERT JACOB HEISTERMAN, RESPONDENT
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The court held that the respondent committed two distinct crimes, assault and shooting into an occupied dwelling, for which separate convictions and sentences were appropriate.
Respondent threatened to kill Mr. Simmons, fired six shots at the occupied dwelling, and was convicted of assault with intent to commit murder and sho…
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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 occupied dwelling, in violation of Section 790.19, Florida Statutes (1973), and for assault with intent to commit murder, in violation of Section 784.06, Florida Statutes (1973). The salient facts of the episode leading to these convictions are that respondent stood outside a dwelling occupied by a Mr. and Mrs. Simmons, yelled (apparently to Mr. Simmons), “come on out, I’m going to kill you” and then, when Simmons did not venture out, fired six shots from a pistol at the windows from which the Simmons peered in terror. The state suggests, and we agree, that respondent committed two distinct crimes for which convictions and sentences were appropriate. The acts constituting assault under the statute were completed when respondent verbally threatened the Simmons, pointed a pistol in their direction, and put them in fear. This crime was proved without evidence that any shots were fired. See State v. White, 324 So. 2d 630 (Fla.1975); Caraker v. State, 84 So. 2d 50 (Fla.1955). Respondent’s other conviction was based on adequate evidence that several shots were in fact fired into the house around the window area.
The convictions and sentences imposed by the trial judge were lawful. The case is remanded with instructions to reinstate the judgment and sentence imposed by the trial court for shooting into an occupied dwelling in violation of Section 790.19.
It is so ordered.
OVERTON, C. J., and ENGLAND, SUNDBERG and ROBERTS (Retired), JJ., concur. HATCHETT, J., dissents.
. The decision conflicts with Estevez v. State, 313 So. 2d 692 (Fla.1975), among other cases.
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Borges v. State, 415 So. 2d 1265 (Fla. 1982)…fairness. At times the courts have looked at the identity or discreteness of the criminal elements, at other times at the identity or discreteness of the evidentiary proof. See, e.g., Johnson v. State, 366 So. 2d 418 (Fla.1978); State v. Heisterman, 343 So. 2d 1272 (Fla.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. Stat…
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Johnson v. State, 366 So. 2d 418 (Fla. 1978)…with the single transaction rule have established a “temporal distinction” test for determining whether separate sentences are proper where two or more convictions are obtained based on a single criminal episode. For example, in State v. Heisterman, 343 So. 2d 1272 (Fla.1977), the respondent had been convicted both of assault with intent to commit murder and of shooting a gun into an occupied [*421] dwelling. The two crimes charged clearly arose out of a single criminal transaction, as the defendant, standing…
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Stanford Legray Knight v. State, 374 So. 2d 1065 (Fla. 3d DCA 1979)…included within the first one and thus was neither a category (3) nor category (4) lesser offense as defined in Brown v. State, supra, Knight could properly be adjudicated and sentenced for both. See Johnson v. State, supra; State v. Heisterman, 343 So. 2d 1272 (Fla.1977); Fayerweather v. State, 332 So. 2d 21 (Fla.1976); Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975). The appellant’s reliance for the contrary conclusion upon Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978) is misplaced. While…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)
- State v. White, 324 So. 2d 630 (Fla. 1975)
- Emmett Caraker v. State, 84 So. 2d 50 (Fla. 1955)
- Strozier v. State, 327 So. 2d 839 (Fla. 3d DCA 1976)
- Heisterman v. State, 327 So. 2d 839 (Fla. 3d DCA 1976)