REGONAL GEORGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Regional George appealed his conviction for attempted first-degree felony murder, burglary with assault, attempted armed robbery, shooting within a building, and firearm-related offenses arising from a single criminal episode at a motel. The court affirmed his convictions and sentences, rejecting his double jeopardy claim, but remanded to correct a clerical error in the sentencing classification.
The court held that George's multiple convictions do not violate double jeopardy because the firearm offenses are not necessarily lesser included offenses of felony murder or robbery, and the burglary conviction does not violate double jeopardy because entry into the room was not a necessary element of the other crimes. The court found no merit in the sentencing calculation argument but identified a clerical error requiring correction.
[1] A conviction for attempted felony murder and the underlying felony does not violate double jeopardy.
[2] Firearm offenses, such as shooting within a building and using a firearm during the commission of a felony, are not necessarily lesser included offenses of felony murder,…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a person may be convicted of attempted felony murder. See Amlotte v. State, 456 So.2d 448 (Fla.1984). He also concedes that he may be convicted of the underlying felony, here, attempted armed robbery.”
Establishes that multiple convictions for attempted murder and underlying felony do not violate double jeopardy under Florida law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGeorge and an accomplice entered a motel room occupied by a deputy sheriff and his wife who were conducting a stakeout due to robberies at the motel. …
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UPCHURCH, Chief Judge.
Appellant was convicted and sentenced to incarceration for attempted first degree felony murder and burglary with an assault, and placed on probation for attempted armed robbery, shooting within a building, and use of a firearm during the commission of a felony, to run consecutive to the incarceration. All of these charges arose from a single criminal episode. Appellant and a co-felon went to a motel room which unfortunately for their plans was occupied by a deputy sheriff and his wife who were there on stakeout because of the rash of robberies which had occurred at this motel. The deputy was seated in the room with the light on. Appellant and his accomplice approached the room, the accomplice slid open the door and without saying anything fired directly at the deputy, fortunately missing. The deputy fired back striking the gunman who fell at the scene.
Appellant contends he has received multiple punishments for the same substantive offense in violation of the constitutional proscription against double jeopardy. We disagree and affirm the judgment, sentences, and order of probation.
First, appellant concedes that under Florida law a person may be convicted of attempted felony murder. See Amlotte v. State, 456 So. 2d 448 (Fla.1984). He also concedes that he may be convicted of the underlying felony, here, attempted armed robbery. See State v. Enmund, 476 So. 2d 165 (Fla.1985). It is clear the two firearm offenses, shooting within a building and use of a firearm during the commission of a felony, are not necessarily lesser included offenses of felony murder, robbery or burglary. See State v. Baker, 456 So. 2d 419 (Fla.1984); State v. Gibson, 452 So. 2d 553 (Fla.1984); Hall v. State, 470 So. 2d 796 (Fla. 4th DCA 1985). Because the entry into the room was not a necessary element of any of the preceding crimes, the burglary conviction also does not violate double jeopardy under a strict Blockburger analysis. See generally Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987); § 775.021(4), Fla.Stat. (1985).
Appellant also contends that the trial court erred in calculating his guideline sentence. We find no merit in his argument; however, there is a clerical error. The written judgment classified both the attempted felony murder and burglary with assault offenses as first degree felonies when, in fact, they are life felonies. On the basis of the court’s pronouncements and appellant’s sentence, this classification can only be a clerical error. We remand to the trial court to correct the error by reclassifying the two offenses as life felonies as provided in section 775.087, Florida Statutes (1985).
Affirmed, but remanded to correct clerical error. ORFINGER and SHARP, JJ., concur.
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Brown v. State, 761 So. 2d 1135 (Fla. 1st DCA 2000)…d, 476 So. 2d at 167-68. Following this lead, courts that considered the question also permitted dual convictions for attempted felony murder and for the underlying felony. See Viera v. State, 532 So. 2d 743, 746 (Fla. 3d DCA 1988); George v. State, 509 So. 2d 972, 973 (Fla. 5th DCA 1987); McLeod v. State, 477 So. 2d 5, 5-6 (Fla. 1st DCA 1985). Section 775.021(4), Florida Statutes (1997), provides an essential guide to legislative intent in this regard. See also Blockburger v. United States, 284 U.S. 299, 52…
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Brinson v. State, 18 So. 3d 1075 (Fla. 2d DCA 2009)…t mere degree variants of the same core offense. See Donaldson v. State, 722 So. 2d 177, 183 (Fla.1998). Thus, a felony murder and the predicate felony may occur during a single criminal episode, as happened in this case. See, e.g., George v. State, 509 So. 2d 972 (Fla. 5th DCA 1987). Here, the State charged Mr. Brin-son with attempted first-degree murder as to one victim, Louis Smith. This offense served as the predicate felony for charging Mr. Brinson with the first-degree felony murder of Cynthia Bethune.…
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Sullivan v. State, 254 So. 3d 1144 (Fla. 3d DCA 2018)…Gaber v. State, 684 So. 2d 189, 192 (Fla. 1996)) (receded from on other grounds by Valdes v. State, 3 So. 3d 1067 (Fla. 2009)). Indeed, a defendant may even be convicted for both attempted felony murder and the underlying felony. George v. State, 509 So. 2d 972, 973 (Fla. 5th DCA 1987) (stating that “under Florida law a person may be convicted of attempted felony murder . . . [and] the underlying felony, here, attempted armed robbery”); see also Holt v. State, 146 So. 3d 1223, 1224 (Fla. 3d DCA 2014) (s…
Authorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- State v. Carney, 476 So. 2d 165 (Fla. 1985)
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)
- State v. Enmund, 476 So. 2d 165 (Fla. 1985)
- State v. Gibson, 452 So. 2d 553 (Fla. 1984)
- Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987)
- Hall v. State, 470 So. 2d 796 (Fla. 4th DCA 1985)