Plowman v. State, 91-02493

• Citation: 586 So.2d 454
• Decision Date: 18 September 1991
• Docket Number: No. 91-02493,91-02493
• Parties: Charles M. PLOWMAN, Appellant, v. STATE of Florida, Appellee. 586 So.2d 454, 16 Fla. L. Week. D2478
• Court: Court of Appeal of Florida (US)

Page 454

586 So.2d 454

Charles M. PLOWMAN, Appellant, v. STATE of Florida, Appellee.

No. 91-02493.

586 So.2d 454, 16 Fla. L. Week. D2478

District Court of Appeal of Florida,

Second District.

Sept. 18, 1991.

PER CURIAM.

Charles M. Plowman appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm this case without prejudice to Plowman to seek relief pursuant to Florida Rule of Criminal Procedure 3.850.

In his motion, Plowman alleges that his convictions and sentences for three counts of possession of firearms by a convicted felon, in violation of section 790.23, Florida Statutes (1987), run afoul of the prohibition against double jeopardy because all three counts stemmed from the same act. In support of his claim, Plowman relies on Watts v. State, 462 So.2d 813 (Fla.1985), in which the supreme court held that a defendant could not be subjected to multiple convictions and punishments for possession of two prison-made knives where the statute under which he was prosecuted made it unlawful "to introduce into or upon the grounds of any state correctional institution ... any firearm or weapon of any kind...." Sec. 944.47, Fla.Stat. (1981). The court, relying on decisions from the federal courts, reasoned "that the term 'any firearm' is ambiguous with respect to the unit of prosecution and must be treated as a single offense with multiple convictions and punishments being precluded." 462 So.2d at 814 (citations omitted). Plowman contends that because section 790.23(1) makes it unlawful for a convicted felon to possess "any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices," he cannot be convicted and sentenced for three counts of a violation of the statute arising out of the same act for simultaneously possessing three illegal weapons.

This allegation is facially sufficient to require an evidentiary hearing or attachments of portions of the record which conclusively refute Plowman's contention. See McKinstry v. State, 437 So.2d 165 (Fla. 2d DCA 1983). The trial court did neither in this case. Rather, the trial court based its summary denial on the fact that Plowman's direct appeal, which resulted in an affirmance, had become law of the case. Our review of our own court records reveals that this issue was not raised or addressed in Plowman's direct appeal.

Generally, postconviction relief will not be granted on grounds that "could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence." Fla.R.Crim.P. 3.850. The supreme court has held, however, that because the right not to be twice placed in jeopardy is "fundamental," double jeopardy violations may be raised for the first time in a postconviction proceeding, even where that conviction is the result of a guilty plea, except where a knowing waiver of the right has occurred. State v. Johnson, 483 So.2d 420, 422 (Fla.1986). The court rejected the state's argument that Johnson had waived his right to raise the double jeopardy violation by not raising it at the time he was tried on the charges. Id. See also Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) (double jeopardy claim entertained even though not raised until federal habeas corpus...