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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