ERNIE TERRELL STRAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ernie Strain appealed his convictions for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon, arguing that dual convictions violated the double jeopardy clause when the possessions occurred simultaneously. The Fourth District Court of Appeal agreed, holding that when a felon's possession of a firearm and ammunition constitute a single possession occurring at the same time, only one conviction is permissible.
The court held that the trial court erred in convicting Strain of both offenses. When a felon's possession of a firearm and ammunition constitute a single possession occurring at the same time and place, the double jeopardy clause prohibits dual convictions. The proper remedy is to vacate the conviction for the lesser offense (possession of ammunition) while affirming the conviction for the greater offense (possession of a firearm).
[1] The Double Jeopardy Clause precludes convicting a felon for both possession of a firearm and possession of ammunition when the possessions constitute a single possession…
[2] When dual convictions violate double jeopardy, the proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one.
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Join FLexlaw to unlock all legal intelligence“the double jeopardy clause precludes convicting a felon for both possession of a firearm and possession of ammunition when the possessions occur at the same time”
Establishes the controlling legal principle from Boyd v. State that prevents dual convictions for simultaneous firearm and ammunition possession
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Join FLexlaw to unlock all legal intelligenceStrain, a convicted felon, was found in possession of both a firearm and ammunition. Although the firearm and ammunition were discovered at two separa…
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The defendant argues that the trial court erred in convicting him for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. He relies on our opinion in Boyd v. State, 17 So.3d 812 (Fla. 4th DCA 2009). In Boyd, we held that the double jeopardy clause precludes convicting a felon for both possession of a firearm and possession of ammunition when the possessions occur at the same time. Id. at 818 (interpreting section 790.23, Florida Statutes (2005)). The state, on the other hand, relying on Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000), argues that the defendant’s possession of the firearm and possession of the ammunition “were clearly separate in both time and space such as to be properly considered as two separate offenses.” Id. at 1228.
We agree with the defendant’s argument. Although the firearm and the ammunition were found at two separate times, the defendant’s possession of the firearm and the ammunition were not “clearly separate in both time and space.” Id. Rather, the defendant’s possession of the firearm and the ammunition consisted of “a single possession of more than one article.” Id. Therefore, the trial court erred in convicting the defendant for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon.
Because the defendant’s conviction for possession of a firearm by a convicted felon carries a three-year minimum mandatory sentence, see § 775.087(2)(a)l.r., Fla. Stat. (2009), we remand for the trial court to vacate the defendant’s conviction and sentence for possession of ammunition by a convicted felon and to correct the defendant’s scoresheet and judgment accordingly. See Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002) (“When dual convictions violate double jeopardy, the proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one.”) (internal quotations and brackets omitted).
On the other two arguments which the defendant raises in this appeal, including his challenge to his conviction for tampering with a witness, we affirm without further discussion. However, we remand for the trial court to amend the defendant’s sentence for tampering with a witness to show that the sentence, which was to run consecutively to the sentence for possession of ammunition by a convicted felon, now shall run consecutively to the sentence for possession of a firearm by a convicted felon.
Affirmed in part, reversed in part, and remanded.
TAYLOR and DAMOORGIAN, JJ., concur.
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Bell v. State, 122 So. 3d 958 (Fla. 2d DCA 2013)…not possessed multiple firearms, it noted that because ammunition was also listed after the word “any” in the statute, the simultaneous possession of both a firearm and ammunition could not support separate convictions. Id. See also Strain v. State, 77 So. 3d 796, 797 (Fla. 4th DCA 2011) (following Boyd on similar facts relating to convictions for possession of a firearm and separate ammunition). In this case, as in Boyd and Strain, the applicable statute prohibits Bell’s possession of “any firearm, ammunit…
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Perri v. State, 154 So. 3d 1204 (Fla. 2d DCA 2015)…citing Boyd and holding that separate convictions for a felon’s possession of ammunition found in his pocket and a firearm found in his car’s glove compartment after he was arrested for a traffic violation violated double jeopardy); Strain v. State, 77 So. 3d 796, 797 (Fla. 4th DCA 2011) (holding that dual convictions of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon violated double jeopardy). The State concedes that appellate counsel was ineffective in this re…
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Arrington Brown v. State, 219 So. 3d 866 (Fla. 4th DCA 2017)…ictions for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon where the firearm and ammunition were possessed at the same time. Boyd v. State, 17 So. 3d 812, 818 (Fla. 4th DCA 2009); Strain v. State, 77 So. 3d 796, 797 (Fla. 4th DCA 2011). The record indicates that appellant simultaneously possessed the firearm and ammunition. Accordingly, we reverse and remand for the trial court to vacate either of the convictions and resentence appellant on the remaining…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nicholson v. State, 757 So. 2d 1227 (Fla. 4th DCA 2000)
- Erickson Olivard v. State, 831 So. 2d 823 (Fla. 4th DCA 2002)
- Boyd v. State, 17 So. 3d 812 (Fla. 4th DCA 2009)