Peterson v. State, 87-3199
| Citation | 542 So.2d 417,14 Fla. L. Weekly 988 |
| Decision Date | 19 April 1989 |
| Docket Number | No. 87-3199,87-3199 |
| Parties | 14 Fla. L. Weekly 988 James W. PETERSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, Patricia G. Lampert and Amy Lynn Diem, Asst. Attys. Gen., West Palm Beach, for appellee.
In a multi-count information, the appellant, James W. Peterson, was charged with, tried for and convicted of attempted first degree murder, aggravated assault with a firearm, armed robbery with a firearm, armed burglary with a firearm, grand theft of a firearm, aiding an escape while armed, and display of a firearm. The jury acquitted him of aggravated battery and of a second count of attempted first-degree murder. Peterson has raised six points on appeal, all of which we have thoroughly examined; we find only two of the points meritorious.
In Count IX Peterson was charged with the display of a firearm during a felony and he was convicted of that offense. He was simultaneously convicted of four underlying felonies with a firearm--attempted murder, robbery, armed burglary, and escape. Under Hall v. State, 517 So.2d 678 (Fla.1988), the Count IX conviction for displaying a firearm cannot stand. Using the analysis set out in Carawan v. State, 515 So.2d 161 (Fla.1987), the supreme court held in Hall that convictions for displaying a firearm and armed robbery, offenses arising from a single act, violated the prohibition against double jeopardy. The post-Carawan amendment to section 775.021, Florida Statutes (1987), does not require a different result. In that amendment the legislature indicated its intention to sentence separately for each criminal offense those persons who "in the course of one criminal transaction or episode, commit[s] an act or acts which constitute one or more criminal offenses," but the legislature simultaneously codified the Blockburger analysis as the technique for determining whether offenses are separate: "if each requires proof of an element that the other does not." § 775.021(4)(a), Fla.Stat. (Supp.1988); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Four of the felonies for which Peterson was convicted--aggravated assault with a firearm, armed robbery with a firearm, armed burglary with a firearm, and aiding an escape while armed--contain the element essential to the fifth offense of displaying a firearm while committing a felony. Thus, the presence of a firearm during the commission of the foregoing felonies forecloses, under either Blockburger or section 775.021(4)(a), the separate offense of displaying a firearm.
The remaining valid point Peterson raises is that he was...
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