STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
WALKER LANIER WHALEY, APPELLEE/CROSS-APPELLANT
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The State appealed the dismissal of an Information charging Whaley with multiple counts of firearm and ammunition possession as a convicted felon. The court held that section 790.23(1)(a) uses the word "any" to encompass all firearms and ammunition as a single unit of prosecution, precluding multiple charges for simultaneous possession of multiple items, but permitted the State to amend the Information to charge either one count of firearm possession or one count of ammunition possession.
The statute's use of "any firearm or ammunition" establishes a single unit of prosecution, precluding multiple counts for simultaneous possession of multiple items. While the State cannot charge four separate firearm counts, it may file an amended Information charging either one count of firearm possession or one count of ammunition possession, but not both.
[1] A statute prohibiting possession of "any firearm or ammunition" by a convicted felon defines the unit of prosecution by the "a/any" test, meaning multiple firearms or amm…
[2] Possession of multiple firearms by a convicted felon at the same time constitutes a single offense under Florida Statutes section 790.23(1)(a).
Previewing 2 of 4 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“Section 790.23(l)(a), Florida Statutes, the statute alleged to have been violated, provides in part that it is unlawful for a convicted felon to possess "any firearm or ammunition."”
Establishes the statutory language at issue and the critical use of "any" rather than "a"
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Join FLexlaw to unlock all legal intelligenceWhaley, a convicted felon, was allegedly in possession of multiple firearms and ammunition at the same time. The State charged him with four counts of…
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The State argues on appeal that the trial court erred in dismissing the Information, *655which charged Appellee/Cross-Appellant, Walker Lanier Whaley, with four counts of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. We reject the State’s argument. Section 790.23(l)(a), Florida Statutes, the statute alleged to have been violated, provides in part that it is unlawful for a convicted felon to possess “any firearm or ammunition.” Moreover, Appellee/Cross-Appel-lant was allegedly in possession of each of the firearms and the ammunition at the same time. See State v. Watts, 462 So.2d 813, 814 (Fla.1985) (holding that the defendant could not be charged with multiple offenses for the possession of two prison-made knives because the statute at issue addressed “any firearm or weapon” as opposed to “a firearm or weapon”); State v. Mitchell, 719 So.2d 1245, 1247 (Fla. 1st DCA 1998) (noting that the answer to what the Legislature intends the unit of prosecution to be for an offense is found by the application of the “a/any” test); see also Hill v. State, 711 So.2d 1221, 1223-25 (Fla. 1st DCA 1998) (holding that the application of the “a/any” test precludes more than one conviction for possession of a firearm by a convicted felon when multiple firearms are possessed at the same time).
We do find merit, however, in Appel-lee/Cross-Appellant’s argument that the trial court erred in ruling that the State could file an amended information charging one count of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. See Boyd v. State, 17 So.3d 812, 814-18 (Fla. 4th DCA 2009) (noting that “ammunition” is listed in section 790.23(l)(a) after the word “any” and reversing and remanding for the trial court to vacate either the conviction for possession of a firearm by a convicted felon or the conviction for possession of ammunition by a convicted felon); see also Francis v. State, 41 So.3d 975, 976 (Fla. 5th DCA 2010) (same).
Accordingly, we affirm in part, reverse in part, and remand with instructions that the trial court permit the State to file an amended information charging either one count of possession of a firearm by a convicted felon or one count of possession of ammunition by a convicted felon.
REVERSED and REMANDED with instructions.
DAVIS, ROBERTS, and ROWE, JJ., concur.
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Citator
Authorities Cited
- State v. Watts, 462 So. 2d 813 (Fla. 1985)
- Hill v. State, 711 So. 2d 1221 (Fla. 1st DCA 1998)
- State v. General Lee Mitchell, 719 So. 2d 1245 (Fla. 1st DCA 1998)
- Boyd v. State, 17 So. 3d 812 (Fla. 4th DCA 2009)
- Francis v. State, 41 So. 3d 975 (Fla. 5th DCA 2010)