AFGHARI BOLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; SONNY BOY OATS, III, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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The court certified a question to the Florida Supreme Court regarding whether a defendant can be convicted and sentenced for both felony murder and the underlying felony in the same prosecution after United States v. Dixon.
Two cases, Afghan Boler v. State and Sonny Boy Oats, III v. State, presented a conflicting result on the same issue of law. The appellate court was un…
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PER CURIAM.
Because of the common issue in these cases, which we elect to pass through to the supreme court pursuant to the provisions of Art. V, § 3(b)(4), Fla. Const., we have consolidated for the purpose of this opinion the cases of Afghan Boler v. State and Sonny Boy Oats, III v. State, in which the panels have reached a conflicting result on the same issue of law. We, as a court, are unable to resolve the conflict. Indeed, en banc proved unsuccessful when the court divided four to four.1
The issue which divides this court, and which we pass through to the supreme court, is:
AFTER UNITED STATES v. DIXON, — U.S.-, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), MAY A DEFENDANT, IN FLORIDA, BE SEPARATELY CONVICTED AND SENTENCED FOR THE FELONY MURDER AND THE QUALIFYING FELONY EVEN IN THE SAME PROSECUTION?
In order to assist the court, we include as concurring opinions the panel decisions on this issue. Mandates will issue in neither case until the supreme court decides whether to accept jurisdiction and, if so, decides the issue.
Boler v. State, Case No. 93-1622.
HARRIS, C.J., DAUKSCH and COBB, JJ., concur. Oats v. State, Case No. 93-2092.
SHARP, W., GOSHORN and GRIFFIN, JJ., concur. . Wc have elected not to delay this matter until a replacement is named to fill the vacancy now occurring on the court.
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Afghari Boler v. State, 678 So. 2d 319 (Fla. 1996)…hrough jurisdiction is actually contained in article V, section 3(b)(5) of the Florida Constitution, and we accept jurisdiction on that basis.2 This case originated as two separate eases that were consolidated by the district court. Boler v. State, 654 So. 2d 603, 604 (Fla. 5th DCA 1995). Afghan Boler was convicted of first-degree felony murder and robbery for killing a convenience store clerk during an armed robbery. Boler was sentenced to life imprisonment for the murder and a consecutive life sentence for…1 / 2
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Jarrett v. State, 675 So. 2d 226 (Fla. 5th DCA 1996)…e raised by Jarrett is his contention that he cannot be convicted of both felony murder and the underlying felony because of double jeopardy considerations. This latter issue currently is pending before the Florida Supreme Court. See Boler v. State, 654 So. 2d 603 (Fla. 5th DCA 1995), rev. granted, 658 So. 2d 989 (Fla.1995). We certify the same question for resolution: “May a defendant in Florida be separately convicted and sentenced for both felony murder and the qualifying felony even in the same prosecutio…