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Mulkey v. State

District Court of Appeal of Florida, Third District
Aug 4, 1992
602 So. 2d 991 (Fla. Dist. Ct. App. 1992)

Opinion

No. 91-2568.

August 4, 1992.

An Appeal from the Circuit Court for Dade County; Juan Ramirez, Judge.

Bennett H. Brummer, Public Defender, and Deborah K. Brueckheimer, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Francie Thomas, Asst. Atty. Gen., for appellee.

Before BASKIN, LEVY and GERSTEN, JJ.


Robert Mulkey appeals convictions and sentences for attempted second degree murder with a firearm, enhanced because he used a firearm, and possession of a firearm during the commission of the attempted murder.

Finding that the trial court did not err in permitting the state to exercise peremptory challenges to strike two black prospective jurors, we affirm defendant's conviction for attempted second degree murder with a firearm. Bowden v. State, 588 So.2d 225, 229 (Fla. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1596, 118 L.Ed.2d 311 (1992); and cases cited in Alen v. State, 596 So.2d 1083, 1090-1091 n. 11 (Fla. 3d DCA 1992) (Hubbart, J. concurring) ("In criminal cases, courts have generally approved challenges by the state to potential jurors who have either been charged with crimes or had close relatives so charged."); see Green v. State, 583 So.2d 647 (Fla. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992). However, we set aside the judgment of conviction and sentence for possession of a firearm during the commission of the attempted murder. Cleveland v. State, 587 So.2d 1145 (Fla. 1991); McGahee v. State, 600 So.2d 9 (Fla. 3d DCA 1992); Cerkella v. State, 588 So.2d 1058 (Fla. 3d DCA 1991); Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988), approved, 587 So.2d 1145 (Fla. 1991). The cause is remanded for resentencing.

Affirmed in part; reversed in part; and remanded.


Summaries of

Mulkey v. State

District Court of Appeal of Florida, Third District
Aug 4, 1992
602 So. 2d 991 (Fla. Dist. Ct. App. 1992)
Case details for

Mulkey v. State

Case Details

Full title:ROBERT MULKEY, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Aug 4, 1992

Citations

602 So. 2d 991 (Fla. Dist. Ct. App. 1992)

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