Goss v. State
| Decision Date | 20 May 1981 |
| Docket Number | No. 80-555,80-555 |
| Citation | 398 So.2d 998 |
| Parties | Steven William GOSS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant was charged with and convicted of first degree murder, felony murder, sexual battery and kidnapping of the deceased female. He appeals, contending that the court erred in sustaining the kidnapping conviction and in refusing to grant a continuance when an out of state expert medical witness declined to appear and testify on his behalf.
Appellant fails to demonstrate an abuse of the court's discretion in denying the continuance. Andrews v. State, 134 Fla. 450, 184 So. 88 (1938); Holman v. State, 347 So.2d 832 (Fla.3d DCA 1977), cert. denied 354 So.2d 981 (1978). Thus there is no error shown as to that issue.
We agree with appellant that there is insufficient evidence to sustain the kidnapping conviction, so the conviction on Count 5 of the information, kidnapping, is reversed and the sentence on that count is set aside.
Sua sponte, we find fundamental error in the conviction for the felony murder count, which issue we address notwithstanding appellant's failure to raise it either in the trial court or on appeal. 1
Appellant's conviction on the felony murder count arose out of the finding of the underlying felony of sexual battery. A defendant cannot be convicted of both felony murder and the underlying felony which serves as the basis for the felony murder count. State v. Pinder, 375 So.2d 836 (Fla.1979). Additionally, since there was only one homicide here, there could only be one murder conviction, so appellant could not be convicted of both premeditated murder and felony murder. Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981).
We therefore affirm the convictions and sentences for premeditated murder and sexual battery, and reverse the convictions and vacate the sentences on the kidnapping and felony murder counts.
AFFIRMED in part, REVERSED in part.
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Rodriquez v. State, 82-570
...may be convicted and sentenced only for the greater of the crimes." See also State v. Pinder, 375 So.2d 836 (Fla.1979); Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980). Since there wa......
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Rosier v. State
...v. State, 199 So. 3d 1068, 1070 (Fla. 5th DCA 2016); Johnson v. State, 574 So. 2d 222, 224 (Fla. 5th DCA 1991); Goss v. State, 398 So. 2d 998, 999 (Fla. 5th DCA 1981). I agree that a finding of reversible error that was neither preserved at the trial level nor argued on appeal should be a r......
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Akins v. State
...See, e.g., Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981) and Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981). That Muszynski involves a double jeopardy violation and its correction as fundamental error although not raised in the tria......
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State v. Rough Surface
...Kan. 554, 575 P.2d 536 (1978); State v. Gilroy, 199 N.W.2d 63 (Iowa 1972); Gray v. State, 463 P.2d 897 (Alaska 1970); Goss v. State, 398 So.2d 998 (Fla.Dist.Ct.App.1981); People v. Densmore, 87 Mich.App. 434, 274 N.W.2d 811 (1978). The rationale applied by these courts is that the impositio......