NORRIS ASHLEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We reverse the defendant’s conviction for possession of a firearm during the commission of a felony and remand the cause to the trial court with directions to vacate its denial of the defendant’s motion in arrest of judgment and to discharge the defendant. We hold that the jury’s verdict acquitting the defendant of robbery, the felony underlying the possession charge, precluded it from returning a guilty verdict on the possession charge, see Redondo v. State, 403 So. 2d 954 (Fla.1981); Mahaun v. State, 377 So. 2d 1158 (Fla.1979); Ayrado v. State, 431 So. 2d 320 (Fla. 3d DCA 1983). Where, as here, the record without dispute reflects that the underlying felony was complete, and there was thus no evidentiary support for a finding of, or an instruction to the jury on, attempt, and, quite correctly, no attempt instruction was given, the exception to the Mahaun-Redondo rule outlined in Pitts v. State, 425 So. 2d 542 (Fla.1983), is inapplicable.
Reversed with directions to discharge.
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Castillo v. State, 590 So. 2d 458 (Fla. 3d DCA 1991)…arge of trafficking and also on the charge of attempted trafficking. That being so, there is a fatal inconsistency between the acquittal on those substantive charges and the conviction of the firearm charge under section 790.07. See Ashley v. State, 493 So. 2d 1079, 1080 (Fla. 3d DCA 1986); Ayrado v. State, 431 So. 2d 320, 321-22 (Fla. 3d DCA 1983). The trial court took a broader view of the Pitts decision and that part of section 790.07 which refers to “any felony.” § 790.07(2), Fla.Stat. (1989) (emphasis ad…
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State v. Perez, 515 So. 2d 352 (Fla. 3d DCA 1987)…PER CURIAM. Affirmed. Ashley v. State, 493 So. 2d 1079 (Fla. 3d DCA 1986).…
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Wainwright v. State, 528 So. 2d 1329 (Fla. 5th DCA 1988)…annot support the firearm conviction in the instant case. In the first place, there is no evidence here, as we must assume there was in Pitts, of an attempt to commit any felony offense that would support the firearm conviction. See Ashley v. State, 493 So. 2d 1079 (Fla. 3d DCA 1986). The evidence presented as to the two counts of aggravated assault supplied proof of completed offenses, not attempts. Presumably, that is why there were no attempt instructions or verdict forms for Counts I and II. See Fla.R.Crim…
Authorities Cited
- Redondo v. State, 403 So. 2d 954 (Fla. 1981)
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)
- Pitts v. State, 425 So. 2d 542 (Fla. 1983)
- Ayrado v. State, 431 So. 2d 320 (Fla. 3d DCA 1983)