Simms v. State

District Court of Appeal of Florida

Simms v. State

538 So. 2d 549, 14 Fla. L. Weekly 512, 1989 Fla. App. LEXIS 893, 1989 WL 13065

CourtDistrict Court of Appeal of Florida

DecidedFebruary 21, 1989

DocketNo. 87-363

StatusPublished

Cited by2 cases

This text of 538 So. 2d 549 (Simms 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

Simms v. State, 538 So. 2d 549, 14 Fla. L. Weekly 512, 1989 Fla. App. LEXIS 893, 1989 WL 13065 (Fla. Ct. App. 1989).

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Opinion

PER CURIAM.

This is an appeal by the defendant Domingo Lazaro Simms from separate convictions and sentences for attempted armed robbery with a firearm and possession of a short-barreled shotgun. The sole point on appeal is that the trial court erred in convicting and sentencing the defendant for these two offenses because they arose from the same act and consequently such double convictions are barred based on the legal reasoning of Carawan v. State, 515 So.2d 161 (Fla.1987).

We disagree and affirm because (a) both of the above-stated offenses admittedly contain an element not present in the other, and (b) the offenses are not aimed at the same evil. The statute prohibiting unlawful possession of a short-barreled shotgun [§ 790.221, Fla.Stat. (1987) ] is aimed at the possession of a certain type of particularly dangerous firearm, namely, a short-barreled shotgun, Rinzler v. Carson, 262 So. 2d 661, 665 (Fla.1972); see Johnson v. State, 535 So.2d 651 (Fla. 3d DCA 1988); the attempted armed robbery statutes [§§ 812.13(2)(a), 777.04, Fla.Stat. (1987)], on the other hand, are not exclusively aimed at possession of such a firearm, but are instead aimed at the possession of any firearm while attempting a robbery. This being so, Hall v. State, 517 So.2d 678 (Fla.1988), is inapplicable because the two crimes which the Court said could not stand together were armed robbery with a firearm and carrying a firearm while committing a felony, wherein the use of any type of firearm was a sufficient showing for a conviction under both statutes. This is not true in the instant case, and, consequently, the convictions and sentences for the above offenses are, in all respects,

AFFIRMED.

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PER CURIAM.

This is an appeal by the defendant Domingo Lazaro Simms from separate convictions and sentences for attempted armed robbery with a firearm and possession of a short-barreled shotgun. The sole point on appeal is that the trial court erred in convicting and sentencing the defendant for these two offenses because they arose from the same act and consequently such double convictions are barred based on the legal reasoning of Carawan v. State, 515 So.2d 161 (Fla.1987).

We disagree and affirm because (a) both of the above-stated offenses admittedly contain an element not present in the other, and (b) the offenses are not aimed at the same evil. The statute prohibiting unlawful possession of a short-barreled shotgun [§ 790.221, Fla.Stat. (1987) ] is aimed at the possession of a certain type of particularly dangerous firearm, namely, a short-barreled shotgun, Rinzler v. Carson, 262 So. 2d 661, 665 (Fla.1972); see Johnson v. State, 535 So.2d 651 (Fla. 3d DCA 1988); the attempted armed robbery statutes [§§ 812.13(2)(a), 777.04, Fla.Stat. (1987)], on the other hand, are not exclusively aimed at possession of such a firearm, but are instead aimed at the possession of any firearm while attempting a robbery. This being so, Hall v. State, 517 So.2d 678 (Fla.1988), is inapplicable because the two crimes which the Court said could not stand together were armed robbery with a firearm and carrying a firearm while committing a felony, wherein the use of any type of firearm was a sufficient showing for a conviction under both statutes. This is not true in the instant case, and, consequently, the convictions and sentences for the above offenses are, in all respects,

AFFIRMED.

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Bluebook (online)

538 So. 2d 549, 14 Fla. L. Weekly 512, 1989 Fla. App. LEXIS 893, 1989 WL 13065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simms-v-state-fladistctapp-1989.

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