State v. Brown
| Decision Date | 17 March 1994 |
| Docket Number | No. 82002,82002 |
| Parties | 19 Fla. L. Weekly S129 STATE of Florida, Petitioner, v. Kevin Bernard BROWN, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief, Asst. Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for petitioner.
Nancy A. Daniels, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for respondent.
We have for review Brown v. State, 617 So.2d 744, 747-48 (Fla. 1st DCA 1993), in which the First District Court of Appeal certified this question as one of great public importance:
WHETHER A PERSON WHO HAS BEEN CONVICTED OF ARMED ROBBERY WITH A FIREARM AND ATTEMPTED FIRST-DEGREE MURDER WHICH ARISES OUT OF THE SAME CRIMINAL EPISODE OR TRANSACTION MAY ALSO BE CONVICTED OF POSSESSION OF A FIREARM DURING THE COMMISSION OF A FELONY, TO WIT: ATTEMPTED FIRST-DEGREE MURDER, WHERE THERE HAS BEEN NO ENHANCEMENT OF THE ATTEMPTED MURDER CHARGE AS A RESULT OF USE OF THE FIREARM.
We have jurisdiction under article V, Sec. 3(b)(4) of the Florida Constitution, and we answer the certified question in the negative.
Kevin Brown and Ronald Burch pulled guns on a Jacksonville convenience store manager on December 30, 1989, and robbed him of $1100. In addition, Burch told the victim, Osborne Hall, that they had to kill him because he knew their identities. Both Brown and Burch fired four to five shots at Hall, wounding him in the hand, face, shoulder, and neck.
Brown was charged with five offenses, all arising out of a single episode: (1) armed robbery; (2) attempted first-degree murder; (3) use of a firearm in the commission of a felony, to wit: attempted first-degree murder; (4) shooting into a building; and (5) possession of a firearm by a convicted felon. The trial court later severed the fifth count. A jury convicted Brown of the other four counts on December 10, 1990. The trial judge sentenced Brown to life for armed robbery, life for attempted first-degree murder, thirty years for using a firearm during the commission of a felony, and thirty years for shooting into a building. The sentences were to run concurrently.
The First District Court of Appeal reversed Brown's conviction of use of a firearm in the commission of a felony. Brown, 617 So.2d at 747. The court held that Brown could not be convicted of possession of a firearm during the commission of a felony, to wit: attempted first-degree murder, when he also received an enhanced sentence for carrying a firearm during the commission of a robbery where both crimes took place during the same criminal episode. Id. The court held that section 775.021(4)(a), Florida Statutes (1991), prohibited looking at the charging document to determine that the "felony" element of use of a firearm in the commission of a felony was attempted premeditated murder and not armed robbery or any other felony. 1 Id. In addition, the court found no distinction in the statutory elements of armed robbery and use of a firearm in the commission of felony. Because...
To continue reading
Request your trial
-
State v. Reardon
...of it as a part of another charge. This is somewhat similar to the issue considered by the Florida Supreme Court in State v. Brown, 633 So.2d 1059 (Fla. 1994), in which it affirmed the holding of the lower court that "Brown could not be convicted of possession of a firearm during the commis......
-
M.P. v. State
..."felony" element of "carrying a concealed weapon while committing a felony" was armed burglary or grand theft. See State v. Brown, 633 So.2d 1059, 1060-61 & n. 1 (Fla.1994). The "carrying a concealed weapon while committing a felony" offense contains the elements of carrying a concealed wea......
-
Brown v. State
...would be impermissible. In A.J.H., supra, this court stated that in State v. Stearns, supra, the supreme court interpreted State v. Brown, 633 So.2d 1059 (Fla.1994), "as standing for the proposition that a defendant could not be convicted and sentenced for two crimes involving a firearm tha......
-
Lewis v. State
...are mandated to do by section 775.021(4), Florida Statutes (1993), and Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993), affirmed, 633 So.2d 1059 (Fla.1994), then a person cannot commit the offense of uttering a forged instrument pursuant to section 831.02, Florida Statutes (1993), without......