ELBERT ROY SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that consolidating a firearm possession charge with other unrelated charges was error requiring a new trial, but affirmed the conviction for firearm possession. It also reversed convictions for two burglary charges due to the state's failure to prove the times of the burglaries.
Defendant was charged with multiple offenses including sexual battery, robbery, kidnapping, burglary, and possession of a firearm by a convicted felon…
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PER CURIAM.
The defendant below, Elbert Roy Smith, was charged with two counts of sexual battery, robbery, kidnapping, armed burglary, burglary, and shooting into a dwelling. These charges all arose from one episode. In addition, in Case No. 82-01, Smith was charged with possession of a firearm by a convicted felon. This latter charge was consolidated for trial with the other counts over objection by the defense. This was error and, pursuant to established authority, requires reversal for a new trial on the charges in those cases enumerated in footnote one of this opinion.1 State v. Vazquez, 419 So. 2d 1088 (Fla.1982); Orr v. State, 380 So. 2d 1185 (Fla. 5th DCA 1980). In two of the cases to be retried (Case Nos. 81-898 and 81-900), Smith can only be retried for the lesser included offenses — aggravated assault and burglary of a structure — for which he was convicted initially. See Green v. U.S., 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
In regard to the conviction for possession of a firearm by a convicted felon (Case No. 82-01), however, no prejudice is presumed and retrial is not mandated. As to that conviction, we affirm. See Vazquez and Orr. In the instant case, two separate and unrelated burglary charges2 were also consolidated for trial with the aforementioned charges. As to those two burglaries, the state failed to show that the burglaries occurred at the times specified in the state’s statement of particulars. The defense motions for judgment of acquittal as to those two charges should therefore have been granted. State v. Jefferson, 419 So. 2d 330 (Fla.1982). Accordingly, we reverse the convictions in those two cases — Nos. 81-896 and 81-949.
AFFIRMED in part; REVERSED in part; and REMANDED for new trial in Case Nos. 81-875, 81-876, 81-877, 81-899, 81-898, 81-900 and 81-959.
COBB, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. . These case numbers were: 81-875, 81-876, 81-877, 81-899, 81-898, 81-900 and 81-959.
. Case Nos. 81-896 and 81-949.
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Elbert Roy Smith v. State, 463 So. 2d 542 (Fla. 5th DCA 1985)…Otherwise, we find no error in the imposition of the sentences. The judgments of conviction are reversed, and the cause is remanded for a new trial. REVERSED and REMANDED. COBB, C.J., and DAUKSCH and OR-FINGER, JJ., concur. . See Smith v. State, 434 So. 2d 18 (Fla. 5th DCA 1983). . Fla.R.Crim.P. 3.350(e) grants the trial court discretion to grant additional peremptory challenges when the information contains two or more counts or where, as here, two or more informations are consolidated for trial. See a…
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Anderson v. State, 549 So. 2d 807 (Fla. 5th DCA 1989)…s towards her. The conviction on Count VI should be reversed because of lack of evidence that the alleged crime occurred within the dates specifically alleged in the information. See State v. Jefferson, 419 So. 2d 330 (Fla.1982) and Smith v. State, 434 So. 2d 18 (Fla. 5th DCA 1983). EVIDEN CE-ADMISSIBILITY-RELE-VAN CY-MATERIALITY-CORROBORATION Charge: D defendant is charged with a sexual offense on V victim at T time and P place. Issue: At trial, the factual issue is simply whether D committed the act ch…
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Hutchinson v. State, 453 So. 2d 900 (Fla. 4th DCA 1984)…HURLEY, Judge, concurring: A reversal is mandated by the Supreme Court’s holding in State v. Jefferson, 419 So. 2d 330 (Fla.1982). See also Smith v. State, 434 So. 2d 18 (Fla. 5th DCA 1983). Today’s decision, however, does not preclude a new prosecution for any crime which occurred before or after the period between March 23rd and May 16th, 1980,— the period specified in the bill of particulars in the case on appeal…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green v. United States, 355 U.S. 184 (U.S. 1957)
- State v. Vazquez, 419 So. 2d 1088 (Fla. 1982)
- State v. Jefferson, 419 So. 2d 330 (Fla. 1982)
- In the Interest of E.J.G. v. State, 380 So. 2d 1185 (Fla. 5th DCA 1980)
- ORR v. State, 380 So. 2d 1185 (Fla. 5th DCA 1980)