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Using a Firearm While Perpetrating a Felony in Florida

Using a firearm while committing a felony is a serious charge in Florida. In a recent Florida gun crime decision, the defendant appealed his conviction for using a firearm while perpetrating a felony in violation of Florida Statutes section 790.07(2).

The case arose in connection with a drug deal that soured. The defendant had gone to the victim’s house to purchase marijuana and shot the victim. The defendant later argued he shot the victim in self-defense because the victim and another person tried to steal the money he’d brought to buy pot. The victim argued that the defendant shot him after trying to grab the pot without paying for it and running away.

The defendant was charged with armed robbery and aggravated battery with a firearm. Although he was arrested for the use of a firearm while committing a felony, he wasn’t charged with it because the prosecutor thought this offense was combined in the other two counts. At trial, the jury found the defendant not guilty of armed robbery and lesser included charges. It couldn’t make a decision on aggravated battery.

Subsequently, the prosecutor charged the defendant again, this time with aggravated battery with a firearm and adding the offense of use of a firearm while perpetrating a felony. The underlying felony for the firearm offense was trying to buy 20 grams or more of pot, rather than the battery or the robbery.

The defendant asked the court to dismiss the firearm count since that offense had arisen from the armed robbery offense of which he’d already been acquitted. His motion was denied.

He was found guilty of the use of firearm offense, but the jury deadlocked as to aggravated battery. The lower court found him guilty of using a firearm while perpetrating a felony, and he was sentenced to two years of community control and probation for three years. The prosecutor abandoned the battery charge. The defendant appealed.

The defendant argued the firearm count should have been dismissed. Under Rule 3.151(c), if a defendant is tried on a charge of one of two or more associated charges, the charges of other related crimes are to be dismissed when the defendant requests unless certain circumstances are present. The purpose of this rule is to stop defendants from being prosecuted over and over for the same actions. Crimes are related when they can be tried in the same court and arise out of the same transaction or connected acts.

The connection can be shown by the prosecutor by proving there was an uninterrupted crime spree or a causal link, regardless of whether time has passed. In this case, the prosecutor agreed that the firearm charge was related to the crimes that were the topic of the first trial. The crimes were inextricably intertwined and happened during a drug crime. The prosecutor could have pursued charges in the same court. There were no exceptions covered by rule 3.151(c). Case law compelled the appellate court to reverse the firearm conviction.

The appellate court found that the lower court had made a mistake in denying the defendant’s motion to dismiss the use of a firearm charge.

If you are charged with a firearm offense in Miami, you should retain an experienced criminal defense attorney. Call The Hoffman Law Firm at (305) 928-1669 or contact us via our online form.

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