WINSTON GEORGE DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed conviction for aggravated battery as violating double jeopardy where defendant was convicted of both attempted first-degree murder and aggravated battery arising from the same criminal episode.
A defendant cannot be convicted of both attempted first-degree murder and aggravated battery arising from a single criminal episode where no additional injury was caused to another person or property.
[1] A defendant may not be convicted of both attempted first-degree murder and aggravated battery arising from a single criminal episode where both statutes address the same…
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Join FLexlaw to unlock all legal intelligenceAppellant fired several shots at a victim, one of which struck the victim, resulting in convictions for both attempted first-degree murder and aggrava…
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PER CURIAM.
In this belated appeal appellant contends that his constitutional protection against double jeopardy was violated by the trial court’s entering a judgment of conviction and sentence for attempted first degree murder and aggravated battery arising out of a criminal episode wherein appellant fired several shots at the victim, one of which struck the victim.
We have carefully considered the record herein and arguments of counsel and conclude that appellant’s contention has merit. Our study of the statutes involved leads to the conclusion that both statutes address the same evil. Furthermore, we are unable to determine that the legislature intended dual convictions for both the attempted homicide and the aggravated battery that occurred during that attempt where no additional injury was caused to another person or property. Thus, following the teaching set forth in Carawan v. State, 515 So. 2d 161 (Fla.1987); State v. Boivin, 487 So. 2d 1037 (Fla.1986); and Mills v. State, 476 So. 2d 172 (Fla.1985), we affirm the attempted murder conviction and sentence, but are compelled to reverse the judgment of conviction and sentence for aggravated battery. It is so ordered.
Affirmed in part, and reversed in part.
DOWNEY, WALDEN and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thayer Stanley Williams v. State, 625 So. 2d 994 (Fla. 1st DCA 1993)…in the trial court’s ruling on this issue. Appellant also contends, and the state agrees, that the judgment of conviction of aggravated battery should be vacated. The trial court vacated the sentence for aggravated battery based on Davis v. State, 559 So. 2d 707 (Fla. 4th DCA 1990), and the failure also to vacate the judgment of conviction was apparently an oversight. The judgment and sentence for attempted second degree murder are affirmed. The judgment of conviction of aggravated battery is vacated. JOA…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Mills v. State, 476 So. 2d 172 (Fla. 1985)
- State v. Jules Boivin, 487 So. 2d 1037 (Fla. 1986)