Opinion
No. 90-2245.
December 24, 1991.
Appeal from the Circuit Court, Dade County, Roy T. Gelber, J.
Bennett H. Brummer, Public Defender, and Carol J.Y. Wilson and Louis Campbell, Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen., and Jorge Espinosa, Asst. Atty. Gen., for appellee.
Before HUBBART, COPE and GERSTEN, JJ.
Dwayne Garcia pled nolo contendere to possession of a firearm by a convicted felon, reserving the right to appeal the trial court's denial of his motion to dismiss the charge. Defendant argues that prosecution of that charge was precluded by the doctrine of collateral estoppel, by reason of defendant's acquittal on the severed charges of attempted first degree murder with a firearm and possession of a firearm during a criminal offense. See Gragg v. State, 429 So.2d 1204 (Fla.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983). As we view this record, collateral estoppel did not preclude prosecution of defendant on the current charge. We are unable to say that the issue of possession was decided by the jury in the prior case, see 429 So.2d at 1206, as the earlier acquittal was consistent with the theory that defendant possessed a firearm but did not shoot the victim.
Affirmed.