Ashley v. State, 85-2193
| Decision Date | 09 September 1986 |
| Docket Number | No. 85-2193,85-2193 |
| Citation | 11 Fla. L. Weekly 1927,493 So.2d 1079 |
| Parties | 11 Fla. L. Weekly 1927 Norris ASHLEY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Long & Knox and Harold Long, Jr., Miami, for appellant.
Jim Smith, Atty. Gen., and Richard L. Kaplan and Steven Scott, Asst. Attys. Gen., for appellee.
Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
We reverse the defendant's conviction for possession of a firearm during the commission of a felony and remand the cause to the trial court with directions to vacate its denial of the defendant's motion in arrest of judgment and to discharge the defendant. We hold that the jury's verdict acquitting the defendant of robbery, the felony underlying the possession charge, precluded it from returning a guilty verdict on the possession charge, see Redondo v. State, 403 So.2d 954 (Fla.1981); Mahaun v. State, 377 So.2d 1158 (Fla.1979); Ayrado v. State, 431 So.2d 320 (Fla. 3d DCA 1983). Where, as here, the record without dispute reflects that the underlying felony was complete, and there was thus no evidentiary support for a finding of, or an instruction to the jury on, attempt, and, quite correctly, no attempt instruction was given, the exception to the Mahaun-Redondo rule outlined in Pitts v. State, 425 So.2d 542 (Fla.1983), is inapplicable.
Reversed with directions to discharge.
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Castillo v. State
...the acquittal on those substantive charges and the conviction of the firearm charge under section 790.07. See Ashley v. State, 493 So.2d 1079, 1080 (Fla. 3d DCA 1986); Ayrado v. State, 431 So.2d 320, 321-22 (Fla. 3d DCA The trial court took a broader view of the Pitts decision and that part......
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Wainwright v. State, 88-9
...assume there was in Pitts, of an attempt to commit any felony offense that would support the firearm conviction. See Ashley v. State, 493 So.2d 1079 (Fla. 3d DCA 1986). The evidence presented as to the two counts of aggravated assault supplied proof of completed offenses, not attempts. Pres......
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State v. Perez, 86-2139
...Asst. Public Defender, for appellee. Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ. PER CURIAM. Affirmed. Ashley v. State, 493 So.2d 1079 (Fla. 3d DCA 1986). ...