Opinion
Nos. 93-1622, 93-2092.
April 26, 1995.
Appeal from the Circuit Court for Brevard County, No. 93-1622; Kerry I. Evander, Judge.
Appeal from the Circuit Court for Marion County, No. 93-2092; Carven D. Angel, Judge.
James B. Gibson, Public Defender, and Nancy Ryan, Asst. Public Defender, Daytona Beach, for appellant in No. 93-1622.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee in No. 93-1622.
James B. Gibson, Public Defender, and Sean K. Ahmed, Asst. Public Defender, Daytona Beach, for appellant in No. 93-2092.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee in No. 93-2092.
Because of the common issue in these cases, which we elect to pass through to the supreme court pursuant to the provisions of Art. V, § 3(b)(4), Fla. Const., we have consolidated for the purpose of this opinion the cases of Afghari Boler v. State and Sonny Boy Oats, III v. State, in which the panels have reached a conflicting result on the same issue of law. We, as a court, are unable to resolve the conflict. Indeed, en banc proved unsuccessful when the court divided four to four.
We have elected not to delay this matter until a replacement is named to fill the vacancy now occurring on the court.
The issue which divides this court, and which we pass through to the supreme court, is:
AFTER UNITED STATES v. DIXON, ___ U.S. ___, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), MAY A DEFENDANT, IN FLORIDA, BE SEPARATELY CONVICTED AND SENTENCED FOR THE FELONY MURDER AND THE QUALIFYING FELONY EVEN IN THE SAME PROSECUTION?
In order to assist the court, we include as concurring opinions the panel decisions on this issue. Mandates will issue in neither case until the supreme court decides whether to accept jurisdiction and, if so, decides the issue.
Boler v. State, Case No. 93-1622.
HARRIS, C.J., DAUKSCH and COBB, JJ., concur.
Oats v. State, Case No. 93-2092.
SHARP, W., GOSHORN and GRIFFIN, JJ., concur.