JOHN MATHIS, A/K/A DAVID LEE MATHIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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John Mathis appeals his convictions for two counts of robbery, possession of a firearm during felony commission, and possession of a short-barreled shotgun, as well as revocation of probation. The court affirms, declining to consider whether the trial court erred in refusing a jury instruction on attempted possession of a short-barreled shotgun as a lesser included offense, applying the concurrent sentence doctrine.
The court declines to entertain the alleged error regarding the failure to give a charge on attempted possession of a short-barreled shotgun because the defendant received a concurrent sentence for that count, making the error harmless under the concurrent sentence doctrine.
[1] A court may decline to consider an alleged error in a jury instruction on a lesser included offense when the sentence for that offense runs concurrently with other senten…
[2] The concurrent sentence rule allows courts to decline review of an issue as a matter of judicial convenience when sentences for multiple convictions are served concurrent…
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Join FLexlaw to unlock all legal intelligence“The defendant was given five years for possession of a short-barreled shotgun, to run concurrently with the other sentences, Therefore, in light of the other sentences accorded the defendant and under the reasoning of the following cases, we decline to entertain any alleged error in the trial judge's failure to give a charge on attempted possession of a short-barreled shotgun.”
Establishes the court's application of the concurrent sentence doctrine to decline review of the instructional error.
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Join FLexlaw to unlock all legal intelligenceMathis was convicted by jury of two counts of robbery, one count of possession of a firearm during the commission of a felony, and one count of posses…
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BARKDULL, Judge.
The defendant appeals from a revocation of probation1 and from conviction of two counts of robbery, one count of possession of a firearm during the commission of a felony, and one count of possession of a short-barreled shotgun, pursuant to a jury verdict. The defendant was sentenced to the following: 30 years for each of the robbery convictions; 5 years for possession of a short-barreled shotgun [the sentence was suspended as to possession of a firearm during the commission of - a felony]; 5 years for revocation of probation, to run concurrently with the sentences imposed in Case No. 76-810.
The appellant urges that the trial court erred in refusing to instruct the jury on attempted possession of a short-barreled shotgun as a lesser included offense, in violation of Fla.R.Crim.P. 3,510, citing Brown v. State, 206 So. 2d 377 (Fla.1968); Miles v, State, 258 So. 2d 333 (Fla. 3rd D.C.A. 1972); Clark v. State, 301 So. 2d 456 (Fla. 3rd D.C.A. 1974); State v. Terry, 336 So. 2d 65 (Fla.1976).
The defendant was given five years for possession of a short-barreled shotgun, to run concurrently with the other sentences, Therefore, in light of the other sentences2 accorded the defendant and under the reasoning of the following cases, we decline to entertain any alleged error in the trial judge’s failure to give a charge on attempted possession of a short-barreled shotgun. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1942); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Radue, 486 F. 2d 220 (5th Cir. 1973); Ethridge v. United States, 494 F. 2d 351 (6th Cir. 1974); United States v. Bowman, 502 F. 2d 1215 (5th Cir. 1974). In Ethridge v. United States, supra, we find the following:
“Petitioner, who was convicted on a variety of counts, including first degree murder, after a lengthy trial before the United States District Court for the Middle District of Tennessee, Nashville Division, and whose conviction we affirmed in 424 F. 2d 951 (6th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442 (1971), now appeals from denial by a Judge of that court of his motion to vacate sentence under 28 U.S.C. § 2255 (1970).
“As a discretionary matter, we decline to consider this issue. See Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). The Supreme Court has indicated, ‘The concurrent sentence rule may have some continuing validity as a rule of judicial convenience.’ Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2061, 23 L.Ed.2d 707 (1969). In Barnes v. United States, supra, it very recently squarely employed the concurrent sentence rule.
“We can think of few circumstances where the rule can be more aptly applied than here. Appellant was convicted upon four counts with the sentences shown below:
Count 8 — murder to avoid apprehension for bank robbery — 50 years.
Count 1 — conspiracy to commit bank robbery and murder — 5 years.
Count 2 — bank robbery — 20 years.
Count 3 — possession of the proceeds of a bank robbery — 10 years.
“All of these sentences are concurrent. The 50-year sentence is not under attack. We can think of no set of circumstances where there could be meaningful collateral effects of the sentences he now attacks. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Benton v. Maryland, supra.
“The judgment of the District Court is affirmed.”
* * * * * $
For the reasons stated, the convictions here under review and the revocation of probation be and the same are hereby afT firmed.
Affirmed.
. The defendant also appeals a revocation of probation following a previous felony conviction, which we find to be without merit.
. Particularly where the record shows four other felony convictions which have not been attacked.
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Jordan v. State, 143 So. 3d 335 (Fla. 2014)…DY, J., concurs in result. . This fact is evidenced by the Florida cases in which the doctrine has still been applied after 1970: Foxx v. State, 392 So. 2d 48 (Fla. 3d DCA 1981); Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980); Mathis v. State, 348 So. 2d 1221 (Fla. 3d DCA 1977). . The Third District’s analysis focused on the fact that Jordan was being resentenced on only one count, while his longer, concurrent sentence of life imprisonment would remain intact. Jordan, 83 So. 3d at 911. However, that fac…
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Bart Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980)…979), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979), we apply the “concurrent sentence doctrine” and decline to consider these issues. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Mathis v. State, 348 So. 2d 1221 (Fla.3d DCA 1977), cert. denied, 357 So. 2d 186 (Fla.1978); see also, Bush v. State, 369 So. 2d 674, 676, n.2 (Fla.3d DCA 1979); Gibson v. State, 368 So. 2d 667, 668, n.2 (Fla.3d DCA 1979). Finally, contrary to the appellant’s claims, we find no er…
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Gibson v. State, 368 So. 2d 667 (Fla. 3d DCA 1979)…would be properly reviewable at all since the sentence imposed was only concurrent to that involved in the case in which Gibson’s probation was revoked. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1942); Mathis v. State, 348 So. 2d 1221 (Fla. 3d DCA 1977), cert. denied, 357 So. 2d 186 (Fla.1978).…
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 (15 total)
- Benton v. Maryland, 395 U.S. 784 (U.S. 1969)
- Sibron v. New York, 392 U.S. 40 (U.S. 1968)
- Hirabayashi v. United States, 320 U.S. 81 (U.S. 1943)
- Carafas v. Lavallee, 391 U.S. 234 (U.S. 1968)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Barnes v. United States, 412 U.S. 837 (U.S. 1973)
- State v. Terry, 336 So. 2d 65 (Fla. 1976)
- Zervos v. Moneymaker in Bankruptcy, 400 U.S. 993 (U.S. 1971)
- Adler Constr. Co. v. United States, 400 U.S. 993 (U.S. 1971)
- United States v. Etheridge, 424 F.2d 951 (6th Cir. 1970)