Vance v. State
| Decision Date | 03 July 1985 |
| Docket Number | No. 65766,65766 |
| Citation | 10 Fla. L. Weekly 355,472 So.2d 734 |
| Parties | 10 Fla. L. Weekly 355 Major VANCE, Petitioner, v. The STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for respondent.
We have before us a petition to review Vance v. State, 452 So.2d 994 (Fla. 3d DCA 1984), which is in express and direct conflict with Solomon v. State, 442 So.2d 1030 (Fla. 1st DCA 1983).
Testimony at trial established that on July 13, 1982, Catherine Jackson paid petitioner in advance to deliver top soil to her yard and do some yard work. Dissatisfied with the quality of the soil he delivered, she went to petitioner's trailer with her nephew, Michael Fleming. When petitioner came to the door, Jackson told him she wanted her money back right then or she would file suit against him. Petitioner lifted his shirt, pulled out a gun, and ordered Jackson and Fleming to leave. At trial there was testimony from both Jackson and Fleming that petitioner pointed the gun at them.
Petitioner was charged with two counts of aggravated assault with a deadly weapon. Defense counsel requested instructions on the lesser included offense of improper exhibition of a dangerous weapon under section 790.10, Florida Statutes (1981), which provides:
790.10 Improper exhibition of dangerous weapons or firearms.--If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis supplied.)
The jury returned guilty verdicts on each count for the lesser included offense of improper exhibition of a dangerous weapon, and the trial court imposed sentences for each conviction.
On appeal, petitioner relied on Solomon to argue that the separate convictions and sentences were impermissible, as section 790.10 obviously contemplates the act of exhibiting a firearm in the presence of two persons. The district court refused to reach the issue, finding the defendant estopped to complain because he had requested the instructions that were given. The district court disagreed with Solomon "[i]nsofar as [it] finds the error of separate convictions under Section 790.10 fundamental ...." Vance, 452 So.2d at 995-96 n.1.
The district court did not have the...
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Williams v. State
...conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error." Id. We applied this rule in Vance v. State, 472 So.2d 734 (Fla.1985), in which the petitioner was charged with two counts of aggravated assault with a deadly weapon and was convicted on each of t......
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FB v. State
...conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error." Id. We applied this rule in Vance v. State, 472 So.2d 734 (Fla.1985), in which the petitioner was charged with two counts of aggravated assault with a deadly weapon and was convicted on each of t......
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Mauldin v. State
...as to the allowable unit of prosecution. The rule of lenity does not apply in this situation.3 We further find that Vance v. State, 472 So.2d 734 (Fla.1985), Green v. State, 706 So.2d 884 (Fla. 4th DCA 1998), and Canion v. State, 661 So.2d 931 (Fla. 4th DCA 1995), relied upon by Mauldin, ar......
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Bautista v. State, 4D01-1610.
...argument in the trial court, being convicted of two crimes, when a statute authorizes only one, is fundamental error. Vance v. State, 472 So.2d 734 (Fla.1985); Troedel v. State, 462 So.2d 392 (Fla.1984). I would therefore reverse one of the manslaughter 1. § 316.193(3)(c)3.b, Florida Statut......