Green v. State, 87-02022
| Decision Date | 24 May 1989 |
| Docket Number | No. 87-02022,87-02022 |
| Citation | 545 So.2d 359,14 Fla. L. Weekly 1308 |
| Parties | 14 Fla. L. Weekly 1308 Jerome GREEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
The motion for rehearing by appellant, Jerome Green, is granted. We withdraw our opinion of April 5, 1989, and substitute the following opinion:
Jerome Green appeals his convictions and sentences for two counts of attempted first-degree murder with a firearm, two counts of possession of a firearm during the commission of a felony, and one count each of aggravated battery, kidnapping, and resisting arrest with violence.
We conclude, and the state concedes, that on these facts, separate convictions and sentences for attempted first-degree murder with a firearm and for possession of a firearm during the commission of a felony violate the double jeopardy provisions of the United States Constitution. Hall v. State, 517 So.2d 678 (Fla.1988); Diaz v. State, 527 So.2d 300 (Fla. 2d DCA 1988); Marion v. State, 526 So.2d 1077 (Fla. 2d DCA 1988). Accordingly, we vacate the convictions and sentences for possession of a firearm during commission of a felony.
The appellant also contends that the trial court's written reasons for sentencing him beyond the recommended guidelines sentence are invalid. The first reason given for departure was that the appellant instigated a "one-man crime wave" only three days after he was released from jail and placed on community control. Because, presumably, each crime has already been factored into the guideline scoresheet, the characterization of a defendant's activities as a "crime wave" is not a valid reason for departure. Mathis v. State, 515 So.2d 214 (Fla.1987); State v. Rousseau, 509 So.2d 281 (Fla.1987).
In this case, the court focused on the fact that the crimes were committed just two days after the appellant was released from jail and placed on community control. The timing was properly considered and constitutes a clear and convincing reason for departure. Franks v. State, 502 So.2d 1369 (Fla. 2d DCA 1987).
The second reason given for departure was that the appellant endangered many persons by discharging a shotgun in a public housing project and forcing police to return fire to defend themselves. Appellant's actions demonstrated...
To continue reading
Request your trial
-
Smith v. State
...quashed, 540 So.2d 111 (Fla.1989). SECOND DISTRICT COURT OF APPEAL: Emmons v. State, 546 So.2d 69 (Fla. 2d DCA 1989); Green v. State, 545 So.2d 359 (Fla. 2d DCA 1989); Marion v. State, 526 So.2d 1077 (Fla. 2d DCA 1988). THIRD DISTRICT COURT OF APPEAL: Dixon v. State, 546 So.2d 1194 (Fla. 3d......
-
Jordan v. State
...outside and had to be ordered back indoors. The departure reason was proper under the facts of this case. See id.; Green v. State, 545 So.2d 359, 360 (Fla. 2d DCA 1989); Moreira v. State, 500 So.2d 343, 344 (Fla. 3d DCA Affirmed. ON MOTION FOR REHEARING AND CERTIFICATION COPE, J. Defendant-......
-
Strawn v. State
...of others by driving on wrong side of road and endangering numerous motorists, some of whom were forced off the road); Green v. State, 545 So.2d 359 (Fla. 2d DCA 1989) (discharge of gun in a public housing area and forcing police to defend themselves with return gunfire); Garcia v. State, 4......
-
Bellamy v. State
...type hit" outside public lounge where one bystander was wounded in shooting), review denied, 577 So.2d 1326 (Fla.1991); Green v. State, 545 So.2d 359 (Fla. 2d DCA 1989) (defendant fired shotgun in housing project, forcing police to defend themselves by returning fire); Burgess v. State, 524......