JEROME BRITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerome Britt appealed the denial of his Rule 3.850 motion for post-conviction relief, arguing that the double jeopardy clause prohibited his concurrent sentences for attempted murder and robbery. The Florida District Court of Appeal affirmed the denial, finding that Britt failed to allege sufficient facts to establish that his conviction was based on felony-murder theory, and that even if it were, his challenge to only the attempted murder sentence was legally insufficient.
The court affirmed the denial of post-conviction relief on two independent grounds: (1) Britt's motion fails to allege that his conviction was predicated on a felony-murder theory necessary to invoke the double jeopardy protection, and (2) even if the case involved felony-murder and robbery, Britt's limited challenge to only the attempted murder sentence is insufficient because Florida law permits sentencing for the greater offense of felony-murder.
[1] A motion for post-conviction relief must allege a factual predicate upon which the requested relief can be granted.
[2] Under Florida law, a defendant may not be sentenced for both felony-murder and the predicate felony.
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Join FLexlaw to unlock all legal intelligence“a defendant may not be sentenced for both felony-murder and the predicate felony”
Establishes the double jeopardy protection under Florida law that Britt was attempting to invoke
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Join FLexlaw to unlock all legal intelligenceBritt was convicted of robbery and attempted murder in the first degree. The record indicated that during the course of a robbery, Britt shot a cab dr…
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PER CURIAM.
Appellant seeks review of an order denying his Fla.R.Crim.P. 3.850 motion for post-conviction relief. By his Rule 3.850 motion appellant sought to have vacated a sentence for the offense of attempted murder in the first degree, upon an assertion that the double jeopardy clause of the Fifth Amendment precludes such a sentence in conjunction with a cotemporaneous sentence for robbery. We find that appellant’s motion fails to allege a factual predicate upon which the requested relief could be granted, and we therefore affirm the order appealed.
The record indicates that “during the course of a robbery [appellant] shot a cab driver _” In his motion for post-conviction relief appellant describes his offenses only as robbery and attempted murder in the first degree.1 Murder in the first degree encompasses both felony-murder and premeditated murder, see § 782.-04(1)(a), Florida Statutes, and the factual assertions of the record below do not negate the conclusion tht this case was prosecuted on a premeditated theory. Although under Florida law a defendant may not be sentenced for both felony-murder and the predicate felony, see Hawkins v. State, 436 So. 2d 44 (Fla.1983); State v. Hegstrom, 401 So. 2d 1343 (Fla.1981), the absence of a clear allegation that appellant’s plea and conviction were predicated on a felony-murder theory precludes the relief requested.
Even were this case clearly one involving sentences for robbery and attempted felony-murder predicated on such robbery, still the requested relief would be properly denied. Appellant’s motion in the trial court, his memorandum in support thereof, and his appeal to this court challenge only the sentence imposed for the attempted first degree murder. While the legislature has not authorized multiple sentences for a defendant convicted of both a predicate felony and felony-murder, such a defendant may be sentenced for the greater offense of felony-murder. See Hawkins v. State, supra; State v. Hegstrom, supra. Appellant’s motion for relief is addressed only to the propriety of his attempted murder sentence, and does not include a challenge to his robbery sentence. Appellant has thus presented only a limited challenge to a permissible sentence, and is therefore not entitled to the relief requested.
The order appealed is affirmed.
MILLS, WENTWORTH and BAR-FIELD, JJ., concur. . In a memorandum filed in support of his motion Britt refers to "the underlying felony robbery"; however, he continues to describe the greater offense as attempted murder in the first degree, and does not otherwise assert that his plea and conviction were predicated on a felony-murder theory.
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Citator
Authorities Cited
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- Hawkins v. State, 436 So. 2d 44 (Fla. 1983)