Brown v. State
Decision Date | 31 May 2017 |
Docket Number | No. 4D16–3433,4D16–3433 |
Citation | 219 So.3d 866 (Mem) |
Parties | Arrington BROWN, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Arrington Brown, Miami, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Arrington Brown, appeals the trial court's order summarily denying his timely rule 3.850 motion for postconviction relief. He claims that his convictions for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon pursuant to section 790.23, Florida Statutes (2004), violate the prohibition against double jeopardy. We agree.
This court has held that double jeopardy prohibits convictions for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon where the firearm and ammunition were possessed at the same time. Boyd v. State , 17 So.3d 812, 818 (Fla. 4th DCA 2009) ; Strain v. State , 77 So.3d 796, 797 (Fla. 4th DCA 2011). The record indicates that appellant simultaneously possessed the firearm and ammunition.
Accordingly, we reverse and remand for the trial court to vacate either of the convictions and resentence appellant on the remaining counts with a corrected scoresheet.1 Boyd v. State , 17 So.3d at 818 ; Gonzalez v. State , 123 So.3d 691 (Fla. 4th DCA 2013).
Reversed and remanded .
1 Appellant did not waive his double jeopardy claim. He entered an unbargained open plea without expressly waiving his right to bring the double jeopardy challenge. Novaton v. State, 634 So.2d 607, 609 (Fla. 1994) ; Labovick v. State, 958 So.2d 1065, 1068 (Fla. 4th DCA 2007).
To continue reading
Request your trial-
Groffel v. Commonwealth
...overruled in part on other grounds, State v. Jenkins, 93 Hawai'i 87, 997 P.2d 13, 38 (2000). Compare Brown v. State, 219 So.3d 866, 867 (Fla. Dist. Ct. App. 2017) (per curiam ), with Commonwealth v. Gaskins, 49 Mass.App.Ct. 903, 727 N.E.2d 1215, 1216 ...
- State v. Lopez
-
Poma v. State, 3D17–737
...See Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) ; Fernandez v. State, 199 So.3d 500 (Fla. 2d DCA 2016) ; Brown v. State, 219 So.3d 866 (Fla. 4th DCA 2017). On remand, the trial court is free to impose the same sentence or any legal sentence. See State v. Davis, 133 So.3d 1101, 1107 n.9 ......