FRANKIE DARLENE "DOLLY" BAGGETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1982-12-16
No. AJ-439
BOOTH and WENTWORTH, JJ., concur.
424 So. 2d 99 Florida District Court of Appeal, First District (1982) Positive Treatment
Cited by 4 cases

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Synopsis

Frankie Darlene Baggett appealed her convictions for armed robbery and aggravated assault, challenging the imposition of separate consecutive sentences and the mandatory minimum firearm enhancements. The Florida appellate court affirmed, holding that aggravated assault was not a lesser included offense to armed robbery and that sufficient evidence supported the firearm possession finding.


Holding

The court held that separate sentences did not violate § 775.021(4) because the jury's verdict finding aggravated assault as a lesser included offense to kidnapping (not armed robbery) established that the two crimes were not violative of the lesser included offense rule; moreover, adequate evidence supported the jury's determination that appellant had actual physical possession of a firearm during the criminal episode.


Headnotes

[1] A jury's verdict can clarify whether an offense is a lesser included offense to another, even if it is generally considered so.

[2] Separate sentences may be imposed for multiple offenses arising from a single criminal transaction if the offenses are not lesser included offenses of each other.

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Key Quotes

“While it is true that the offense of aggravated assault can be a lesser included offense to both armed robbery and kidnapping, the jury in this case expressly found that the assault committed by appellant was a lesser included offense under Count II of the information charging kidnapping. By this verdict, the jury determined that the assault committed by appellant was not a lesser included offense to the armed robbery she committed.”

The court's reasoning for why separate sentences did not violate the lesser included offense sentencing prohibition.

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Facts & Procedural History

Baggett was tried on charges of armed robbery and kidnapping. A jury convicted her of armed robbery as charged in Count I and aggravated assault as a …

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

This is an appeal from judgment of guilt and sentences for the crimes of robbery and aggravated assault. We affirm.

Upon trial of a two-count information charging armed robbery and kidnapping, appellant was convicted by a jury of armed robbery as charged in Count I and of aggravated assault as a lesser included offense to the kidnapping charged in Count II. Appellant received separate sentences, to be served consecutively. Because appellant used a firearm in the commission of her crimes, separate consecutive mandatory minimum terms of three years were imposed pursuant to § 775.087(2), Fla.Stat. (1979).

In urging reversal, appellant first contends that because aggravated assault is a lesser included offense to armed robbery, and because her two crimes were committed in the course of a single criminal transaction, the imposition of separate sentences was contrary to the provisions of § 775.021(4), Fla.Stat. (1979).1 We cannot agree.

Aggravated assault may be an assault with a deadly weapon without intent to kill or it may be an assault with intent to commit a felony. § 784.021(1), Fla.Stat. (1979). While it is true that the offense of aggravated assault can be a lesser included offense to both armed robbery and kidnapping, the jury in this case expressly found that the assault committed by appellant was a lesser included offense under Count II of the information charging kidnapping. By this verdict, the jury determined that the assault committed by appellant was not a lesser included offense to the armed robbery she committed. Therefore, the trial judge did not err in imposing separate sentences for the two crimes.

Appellant’s second contention is that the trial judge erred in imposing mandatory minimum sentences pursuant to § 775.087(2), Fla.Stat., since the evidence was insufficient to establish that appellant had actual, as opposed to vicarious, possession of a firearm during the commission of the crimes. This contention is without merit. There was more than adequate evidence to support the jury’s determination that appellant had actual physical possession of a firearm from time to time during the pendency of the subject criminal episode.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur. . § 775.021(4), Fla.Stat. states in part:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses ....

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Citator

Cited By

  • Del Haskins v. State, 428 So. 2d 389 (Fla. 1st DCA 1983)
    …med robbery and kidnapping. See Dowdell v. State, 415 So. 2d 144,145 (Fla. 1st DCA 1982). The same argument was made by accomplice Baggett on her appeal from similar convictions. For the reasons set forth in this Court’s opinion in Baggett v. State, 424 So. 2d 99 (Fla. 1st DCA 1982) we reject the defendant’s attack on the aggravated assault judgment and sentence. AFFIRMED. BOOTH and WIGGINTON, JJ., concur.…
  • Perdomo v. State, 458 So. 2d 66 (Fla. 3d DCA 1984)
    …ion. The defendant had two defense counsel. The trial court refused to permit a witness to be examined on recross by a second attorney. We find no error in either instance and affirm. Jacobs v. State, 396 So. 2d 713 (Fla.1981); Baggett v. State, 424 So. 2d 99 (Fla. 1st DCA 1982). Affirmed.…

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