Wimberly v. State

District Court of Appeal of Florida

Wimberly v. State

649 So. 2d 338, 1995 Fla. App. LEXIS 608, 1995 WL 36165

CourtDistrict Court of Appeal of Florida

DecidedFebruary 1, 1995

DocketNo. 94-1477

StatusPublished

Cited by3 cases

This text of 649 So. 2d 338 (Wimberly 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

Wimberly v. State, 649 So. 2d 338, 1995 Fla. App. LEXIS 608, 1995 WL 36165 (Fla. Ct. App. 1995).

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Opinion

PER CURIAM.

The defendant, Rodrick Wimberly, appeals from his convictions and sentences for second degree murder with a firearm and for unlawful possession of a firearm while engaged in a criminal offense.

We affirm the conviction and sentence for second degree murder; however, upon the State’s proper confession of error, we reverse the conviction and sentence for unlawful possession of a firearm while engaged in a criminal offense. Where the use of a weapon is the basis for enhancing the charge of second degree murder to a life felony, double jeopardy bars a separate conviction and sentence for misuse of the same firearm. Cleveland v. State, 587 So.2d 1145 (Fla.1991); Allen v. State, 643 So.2d 87 (Fla.3d DCA 1994); Joseph v. State, 625 So.2d 109 (Fla. 3d DCA 1993); Thomas v. State, 617 So.2d 1128 (Fla. 3d DCA 1993).

We find that the defendant’s remaining point lacks merit.

Accordingly, we affirm in part and reverse in part.

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PER CURIAM.

The defendant, Rodrick Wimberly, appeals from his convictions and sentences for second degree murder with a firearm and for unlawful possession of a firearm while engaged in a criminal offense.

We affirm the conviction and sentence for second degree murder; however, upon the State’s proper confession of error, we reverse the conviction and sentence for unlawful possession of a firearm while engaged in a criminal offense. Where the use of a weapon is the basis for enhancing the charge of second degree murder to a life felony, double jeopardy bars a separate conviction and sentence for misuse of the same firearm. Cleveland v. State, 587 So.2d 1145 (Fla.1991); Allen v. State, 643 So.2d 87 (Fla.3d DCA 1994); Joseph v. State, 625 So.2d 109 (Fla. 3d DCA 1993); Thomas v. State, 617 So.2d 1128 (Fla. 3d DCA 1993).

We find that the defendant’s remaining point lacks merit.

Accordingly, we affirm in part and reverse in part.

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Bluebook (online)

649 So. 2d 338, 1995 Fla. App. LEXIS 608, 1995 WL 36165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimberly-v-state-fladistctapp-1995.

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