LARRY DOUGLAS BOGARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Larry Douglas Bogard was convicted of three criminal offenses, as follows:
Count I — Aggravated Battery.
Count II — Possession of a firearm while engaged in a felony.
Count III — Aggravated Assault.
Having considered the proofs and applied the definition of “lesser included” offenses articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); in accord, Borges v. State, 415 So. 2d 1265 (Fla.1983), as well as the more recent analysis in Bell v. State, 437 So. 2d 1057 (Fla.1983), we hold that the constituent elements of Section 790.07(1), (2), Florida Statutes (1981), as charged in Count Two are sufficiently similar to those of Section 784.045(l)(b), Florida Statutes (1981), as charged in Count One, to here classify Count Two of the Information as a lesser included offense of that charged in Count One.
Accordingly, we affirm as to Counts One and Three, reverse as to Count Two, and remand with instructions to vacate both the conviction and sentence on Count Two.
Affirmed in part; reversed in part; and remanded.
ANSTEAD, C.J., and HURLEY and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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O'Brien v. State, 454 So. 2d 675 (Fla. 5th DCA 1984)…recent holdings by the Fourth District Court of Appeal that double jeopardy prohibits convictions of the firearm offense (§ 790.07(2), Fla.Stat.) and its underlying felony, see Jackson v. State, 436 So. 2d 1101 (Fla. 4th DCA 1983); Bogard v. State, 451 So. 2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So. 2d 677 (Fla. 4th DCA 1984). If by Gibson the Florida Supreme Court has foreclosed its consideration of the problem, then it is perhaps too late, but to be consistent with the rationale of Blockburger, P…
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…Prescott v. State, 529 So. 2d 302 (Fla. 4th DCA 1988); Sapp v. State, 522 So. 2d 1006 (Fla. 4th DCA 1988). Contra, Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988); Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988). See also Bogard v. State, 451 So. 2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So. 2d 677 (Fla. 4th DCA 1984) and Jackson v. State, 436 So. 2d 1101 (Fla. 4th DCA 1983). The point of citing Jackson, Bogard and Alvarez is that those cases were disapproved by the supreme court in State v…
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Akins v. State, 462 So. 2d 1161 (Fla. 5th DCA 1984)…t of Appeal that double jeopardy prohibits the conviction of the offense of use of a firearm in the commission of a felony (§ 790.07(2), Fla.Stat. (1983)) and the underlying felony upon which the use of firearm offense is based, see Bogard v. State, 451 So. 2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So. 2d 677 (Fla. 4th DCA 1984); Jackson v. State, 436 So. 2d 1101 (Fla. 4th DCA 1983). But see State v. Baker, 456 So. 2d 419 (Fla.1984); Gibson v. State, 452 So. 2d 553 (Fla.1984); and the specially concur…
Authorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Borges v. State, 415 So. 2d 1265 (Fla. 1982)
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)