Henderson v. State, 87-2447
Decision Date | 31 May 1988 |
Docket Number | No. 87-2447,87-2447 |
Citation | 526 So.2d 743,13 Fla. L. Weekly 1314 |
Parties | 13 Fla. L. Weekly 1314 Herbert HENDERSON, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Herbert Henderson, in Pro. Per.
Robert A. Butterworth, Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
Henderson was convicted of "Possession of a Firearm in the Commission of a Felony," section 790.07, Florida Statutes (1987), and "Second Degree Murder by Use of a Firearm," sections 782.04(2) and 775.087, Florida Statutes (1987). Both of these convictions resulted from a single act by Henderson, i.e., the firing of a firearm at another individual.
Both convictions cannot stand. Faced with a similar question the fifth district held:
[A] defendant should not be convicted and punished, or his punishment enhanced, twice because of one misuse one time of a firearm. When the firearm is an essential enhancing element of the underlying offense ... the defendant should not also be convicted and punished under section 790.07(2), Florida Statutes, for that same misuse of the same firearm.
Burton v. State, 522 So.2d 88, 89 n. 4 (Fla. 5th DCA 1988).
Current views of the Supreme Court of Florida on double jeopardy support our holding. See Hall v. State, 517 So.2d 678, 678 (Fla.1988) ( ); Carawan v. State, 515 So.2d 161 (Fla.1987) ( ).
The motion for post-conviction relief is granted in accordance with the above determination, and the cause is remanded for resentencing.
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Ambroa v. State, 87-2397
...commission of a felony where both charges arise from a single act. Smith v. State, 539 So.2d 601 (Fla. 3d DCA 1989); Henderson v. State, 526 So.2d 743 (Fla. 3d DCA 1988). The conviction for possession of a firearm in the course of committing a felony is reversed and the cause is remanded fo......