Summary
In Graham v. State, 559 So.2d 410 (Fla. 2d DCA 1990), the Second District Court of Appeal held that a conviction of the firearms offense and of the underlying felony violated double jeopardy, citing Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988). Perez reversed a firearms conviction because the conduct in using (displaying) the firearm in the commission of a felony (conduct criminalized by section 790.07(2), Florida Statutes), was used to enhance punishment for the two underlying offenses of attempted murder and attempted robbery.
Summary of this case from Simmons v. StateOpinion
No. 87-03191.
April 11, 1990.
Appeal from the Circuit Court for Sarasota County; Becky Titus, Judge.
James Marion Moorman, Public Defender, Bartow, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David R. Gemmer, Asst. Atty. Gen., Tampa, for appellee.
Larry Graham a/k/a Willie Love appeals his convictions and sentences for attempted armed robbery with a firearm and possession of a firearm during the commission of a felony. We vacate the conviction and sentence for possession of a firearm during the commission of a felony. Otherwise, we affirm.
Although Graham raises several issues in this appeal, the only issue that has merit stems from Graham's convictions and sentences for the offenses of attempted armed robbery with a firearm and use of a firearm during the commission of a felony. We hold that these dual convictions constitute a violation of double jeopardy under the authority of Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988).
The conviction and sentence for use of a firearm during the commission of a felony is vacated.
LEHAN, A.C.J., and THREADGILL and PARKER, JJ., concur.