Ashley v. State

District Court of Appeal of Florida

Ashley v. State

493 So. 2d 1079, 11 Fla. L. Weekly 1927, 1986 Fla. App. LEXIS 9623

CourtDistrict Court of Appeal of Florida

DecidedSeptember 9, 1986

DocketNo. 85-2193

StatusPublished

Cited by3 cases

This text of 493 So. 2d 1079 (Ashley v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ashley v. State, 493 So. 2d 1079, 11 Fla. L. Weekly 1927, 1986 Fla. App. LEXIS 9623 (Fla. Ct. App. 1986).

Pincite

Opinion

PER CURIAM.

We reverse the defendant’s conviction for possession of a firearm during the commission of a felony and remand the cause to the trial court with directions to vacate [1080]*1080its denial of the defendant’s motion in arrest of judgment and to discharge the defendant. We hold that the jury’s verdict acquitting the defendant of robbery, the felony underlying the possession charge, precluded it from returning a guilty verdict on the possession charge, see Redondo v. State, 403 So.2d 954 (Fla.1981); Mahaun v. State, 377 So.2d 1158 (Fla.1979); Ayrado v. State, 431 So.2d 320 (Fla. 3d DCA 1983). Where, as here, the record without dispute reflects that the underlying felony was complete, and there was thus no evidentia-ry support for a finding of, or an instruction to the jury on, attempt, and, quite correctly, no attempt instruction was given, the exception to the Mahaun-Redondo rule outlined in Pitts v. State, 425 So.2d 542 (Fla.1983), is inapplicable.

Reversed with directions to discharge.

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PER CURIAM.

We reverse the defendant’s conviction for possession of a firearm during the commission of a felony and remand the cause to the trial court with directions to vacate [1080]*1080its denial of the defendant’s motion in arrest of judgment and to discharge the defendant. We hold that the jury’s verdict acquitting the defendant of robbery, the felony underlying the possession charge, precluded it from returning a guilty verdict on the possession charge, see Redondo v. State, 403 So.2d 954 (Fla.1981); Mahaun v. State, 377 So.2d 1158 (Fla.1979); Ayrado v. State, 431 So.2d 320 (Fla. 3d DCA 1983). Where, as here, the record without dispute reflects that the underlying felony was complete, and there was thus no evidentia-ry support for a finding of, or an instruction to the jury on, attempt, and, quite correctly, no attempt instruction was given, the exception to the Mahaun-Redondo rule outlined in Pitts v. State, 425 So.2d 542 (Fla.1983), is inapplicable.

Reversed with directions to discharge.

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Bluebook (online)

493 So. 2d 1079, 11 Fla. L. Weekly 1927, 1986 Fla. App. LEXIS 9623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashley-v-state-fladistctapp-1986.

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