THE TRIAL COURT VIOLATED PETITONER”S RIGHT AGAINST DOUBLE JEOPARDY BY ADJUDICATING HIM GUILTY AND SENTENCING HIM BOTH FOR AGGRAVATED ASSAULT WITH A FIREAEM AND THE UNDERLYING FELONY OF ATTEMPTED RUBBERY WITH A FIREARM.
The jury found Petitioner guilty of attempted robbery with a firearm and aggravated assault with a firearm.
At sentencing, Defense counsel argued against an enhancement of the degree of the robbery, asserting that it was
improper to enhance an offense already enhanced for use of a firearm. The court rejected these arguments
and adjudicated Petitioner guilty of the offenses as first and second degree felonies. The court imposed
concurrent guideline sentences of 12 years and 5 years imprisonment offense, with credit for time served.
SUMMARY OF ARGUMENT
Robbery with a firearm contains no elements not also
necessary to prove use of aggravated assault with a firearm.
One subsumes the other, making dual convictions unlawful
double jeopardy under a strict Blockburger analysis.
ARGUMENT
THE TRIAL COURT VIOLATED APPELLANT’S
RIGHT AGAINST DOUBLE JEOPARDY
BY ADJUDICATING HIM GUILTY AND
SENTENCING HIM BOTH FOR ATTEMPTED ROBBERY WITH A FIEARM
AND AGGRAVATED ASSAULT WITH A FIREARM
WHICH IS THE UNDERLYING
FELONY OF ARMED ROBBERY.
Section 7 7 5 . 0 2 1 ( 4 ) , Florida Statutes (Supp. 1988). The
amendment returns analysis of the fruits of prosecutorial
overcharging to what has become known as a straight Blockburger
analysis, a reference to the test applied by the U.S. Supreme
Court in Blockburger v. United States, 284 U.S. 299 ( 1 9 3 2 ) .
Under Blockburger and Florida statute, offenses are separate if
each requires proof of an element which the other does not.
Exceptions to the legislature’s pronounced intent of multiple
convictions whenever possible include offenses which require
identical elements of proof, or those which are lesser offenses
the statutory elements of which are subsumed by the greater
offense.
Attempted armed robbery includes the elements of a
failed effort to accomplish a taking by force or putting in fear
through the use of a firearm or deadly weapon.
812.13(1) and ( 2 ) (a), Florida Statutes ( 1 9 8 9 ) . Both offenses consist of the felony
— here, robbery — and the use of a firearm in committing that
felony. They require identical elements of proof. Although a
higher degree crime, the robbery is a “lesser” offense of the
firearm crime, for double jeopardy purposes, as all its
constituent elements, the felony plus the firearm, are subsumed
by the elements of use of a firearm in the aggravated assault.
In Ellison v. State, 538 So.2d 90 (Fla. 1st DCA 1989),
the court recognized that aggravated assault with a firearm
requires the same elements of proof as use of a firearm in the
commission of a felony. Consequently, double jeopardy required
reversal of one conviction. In his dissent in Smith v. State,
548 So.2d 755 (Fla. 5th DCA 1989), Judge Cowart maintained his
0 tradition of incisive double jeopardy analysis to reach the same
conclusion:
Because the
necessarily
weapon and firearm offenses
incorporate within themselves, as
one composite element, all of the elements of
the underlying felony offense plus an additional
multi-faceted element: that while
committing or attempting to commit the
underlying felony, the perpetrator displays,
uses, or threatens the use of a weapon or
firearm (or carries a concealed firearm).
This makes the weapon or firearm offense
always ancillary to, and dependent upon, the
underlying felony offense.
* * *
Where, as here, the underlying offense
requires the use of a weapon or firearm, then
the underlying offense and the ancillary
offense are obviously “the same offense” and
also fall within the exception provided in
section 775.021(4)(b)l., Florida Statutes
(1988), relating to “offenses which require
identical elements of proof.” Even when the
underlying offense does not require the use
of a weapon or firearm, because the underlying
felony offense, whatever its elements, is
always completely included within the weapon
or firearm offense, the underlying felony
offense is always a necessarily lesser
included offense of the ancillary weapon or
firearm offense and, as such, [it] is “the
same offense” within the constitutional
contemplation and also falls within the
exception provided in section
775.021(4) (b)3., Florida Statutes (1988),
relating to “offenses which are subsumed by
the greater offense.”
In Graham v. State, 559 So.2d 410 (Fla. 2d DCA 1990). Graham
appealed his convictions and sentences for attempted armed
robbery with a firearm and possession of a firearm during the
commission of a felony.
The Second District Court of Appeal held
that those dual convictions constitute a violation of double
jeopardy under the authority of Perez v. State, 528 So.2d 129
(Fla. 3rd DCA 1988). Consequently, Graham’s conviction and
sentence for use of a firearm during the commission of a felony
was vacated.
THIS ARGUMENT WAS NEVER RAISED ON THE DIRECT APPEAL
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CASES CITED:
Blockburger v. United States, 284 U.S. 299 (1932) 3,4
Davis v. State, 560 So.2d 1231 (Fla. 5th DCA 1990)
Ellison v. State, 538 So.2d 90 (Fla. 1st DCA 1989) 5
Graham v. State, 559 So.2d 410 (Fla. 2d DCA 1990) 2
Perez v. State, 528 So.2d 129 (Fla. 3rd DCA 1988) 6
Smith v. State, 548 So.2d 755 (Fla. 5th DCA 1989) 5
