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Ellison v. State

District Court of Appeal of Florida, First District
Feb 7, 1989
538 So. 2d 90 (Fla. Dist. Ct. App. 1989)

Summary

holding that defendant could be convicted and sentenced for either aggravated assault with a firearm or use or display of a firearm in the commission of a felony, but not both

Summary of this case from Schoonover v. State

Opinion

No. 88-1097.

February 7, 1989.

Appeal from the Circuit Court, Duval County, Donald R. Moran, J.

David P. Gauldin, Sp. Asst. Public Defender, Tallahassee, for appellant.

Royall P. Terry, Asst. Atty. Gen., Tallahassee, for appellee.


Ellison appeals his conviction and sentence for aggravated assault with a firearm, use of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He contends that he was improperly convicted of both aggravated assault with a firearm and use or display of a firearm during the commission of a felony. We agree and reverse.

Criminal offenses are separate offenses only if each offense requires proof of an element that the other does not. § 775.021(4), Fla. Stat. Aggravated assault with a firearm, §§ 784.021 and 775.087(2)(a), Fla. Stat. (1987), requires the same elements of proof required in proof of use or display of a firearm during the commission of a felony. § 790.07(2), Fla. Stat. (1987). The double jeopardy prohibition precludes Ellison from being punished twice for the same offense. Therefore, he can be convicted and sentenced for either one of the offenses but not both.

The state incorrectly contends that § 775.087 mandates that the third degree felony of aggravated assault with a firearm be reclassified as a second degree felony. Section 775.087 requires reclassification only if the use of a firearm or weapon is not an essential element of the felony charged. Use of a firearm is an essential element of aggravated assault with a firearm.

Reversed and remanded for resentencing.

WENTWORTH, THOMPSON and WIGGINTON, JJ., concur.


Summaries of

Ellison v. State

District Court of Appeal of Florida, First District
Feb 7, 1989
538 So. 2d 90 (Fla. Dist. Ct. App. 1989)

holding that defendant could be convicted and sentenced for either aggravated assault with a firearm or use or display of a firearm in the commission of a felony, but not both

Summary of this case from Schoonover v. State
Case details for

Ellison v. State

Case Details

Full title:JOHNNY ELLISON, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Feb 7, 1989

Citations

538 So. 2d 90 (Fla. Dist. Ct. App. 1989)

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The offense of aggravated assault with a firearm cannot be reclassified to a second degree felony because use…