Wimberly v. State

Full title: RODRICK WIMBERLY, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Feb 1, 1995

649 So. 2d 338 (Fla. Dist. Ct. App. 1995)

Opinion

No. 94-1477.

February 1, 1995.

Appeal from the Circuit Court, Dade County, Jeffrey Rosinek, J.

Bennett H. Brummer, Public Defender and Robert Kalter, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Roberta G. Mandel, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BARKDULL and GODERICH, JJ.

PER CURIAM.

The defendant, Rodrick Wimberly, appeals from his convictions and sentences for second degree murder with a firearm and for unlawful possession of a firearm while engaged in a criminal offense.

We affirm the conviction and sentence for second degree murder; however, upon the State's proper confession of error, we reverse the conviction and sentence for unlawful possession of a firearm while engaged in a criminal offense. Where the use of a weapon is the basis for enhancing the charge of second degree murder to a life felony, double jeopardy bars a separate conviction and sentence for misuse of the same firearm. Cleveland v. State, 587 So.2d 1145 (Fla. 1991); Allen v. State, 643 So.2d 87 (Fla.3d DCA 1994); Joseph v. State, 625 So.2d 109 (Fla. 3d DCA 1993); Thomas v. State, 617 So.2d 1128 (Fla. 3d DCA 1993).

We find that the defendant's remaining point lacks merit.

Accordingly, we affirm in part and reverse in part.