LIVINGSTON JOSEPH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1989-07-25
No. 88-1080
Before SCHWARTZ, C.J., and BARKDULL and GERSTEN, JJ.
547 So. 2d 249 Florida District Court of Appeal, Third District (1989) Positive Treatment
Cited by 4 cases

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Holding

The court held that a conviction for possession of a firearm during the commission of an attempted felony is duplicitous of the enhanced attempted felony conviction and must be vacated. It also held that an upward departure sentence requires a written order.


Facts & Procedural History

The defendant was convicted of first-degree murder, attempted first-degree murder (enhanced by firearm use), and possession of a firearm during the at…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendant-appellant was convicted of first degree murder; attempted first degree murder, which was scored and treated as a life felony under section 775.087(1), Florida Statutes (1987) because a firearm was involved; and possession of a firearm in the commission of the attempted murder. We find no merit in his pro se challenge to the murder conviction and sentence and turn to the claims of error in the possession conviction and the upward departure sentence of life imprisonment (concurrent with the capital life sentence for the first degree murder) imposed on the attempted murder charge.

We first hold, as we have repeatedly in the past, that the conviction on the firearm charge, which is duplicitous of the attempted first degree murder conviction as enhanced by the use of a firearm, cannot independently stand. See Mozqueda v. State, 541 So. 2d 777 (Fla. 3d DCA 1989). Accordingly, the possession of a firearm conviction is vacated.

Even though the ground orally announced for departure, the conviction of a capital felony, is entirely appropriate, see Hansbrough v. State, 509 So. 2d 1081, 1088 (Fla.1987), we also conclude that, because no written departure order was entered below, the attempted murder sentence must be remanded for that to be done. See State v. Albelo, 541 So. 2d 778 (Fla. 3d DCA 1989); Padgett v. State, 534 So. 2d 1246 (Fla. 3d DCA 1988).

Affirmed in part, vacated in part and remanded.


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Citator

Cited By

  • Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)
    …STRICT COURT OF APPEAL: Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989); Ambroa v. State, 547 So. 2d 294 (Fla. 3d DCA 1989); Sands v. State, 547 So. 2d 293 (Fla. 3d DCA 1989); State v. Finney, 550 So. 2d 1141 (Fla. 3d DCA 1989); Joseph v. State, 547 So. 2d 249 (Fla. 3d DCA 1989); Jones v. State, 546 So. 2d 126 (Fla. 3d DCA 1989); Holsey v. State, 544 So. 2d 342 (Fla. 3d DCA 1989); Gonzalez v. State, 543 So. 2d 386 (Fla. 2d DCA 1989); Morales v. State, 541 So. 2d 1289 (Fla. 3d DCA 1989); Anderson v. State,…
  • Livingston Joseph v. State, 924 So. 2d 19 (Fla. 3d DCA 2005)
    …PER CURIAM. Livingston Joseph has filed a petition for writ of mandamus and/or motion to enforce mandate. He contends that this court’s mandate in Joseph v. State, 547 So. 2d 249 (Fla. 3d DCA 1989), was never complied with. The State’s response demonstrates that on remand from this court’s 1989 decision, the trial court in 1990 complied with the mandate by entering a sentencing guidelines departure order on count two, and…

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