This cause is before the Court on petition for certiorari to review the decision in Redondo v. State, 380 So.2d 1107 (Fla.3d DCA 1980). We find express and direct conflict with Mahaun v. State, 377 So.2d 1158 (Fla. 1979), and therefore have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner was charged by a two-count information with aggravated battery and the unlawful possession of a firearm while engaged in the commission of a felony. The case was tried before a jury. On the aggravated battery charge, the jury returned a verdict of guilty of the lesser included offense of simple battery. On the firearm charge, the jury found petitioner guilty as charged of possession of a firearm during the commission of a felony.

The trial court initially entered judgment on both convictions, but later granted a motion for arrest of judgment on the firearm charge on the ground that it was inconsistent with the jury's acquittal of petitioner on the underlying felony charge.

On appeal, the district court reversed the judgment of conviction of simple battery due to an error the trial court made in instructing the jury. The case was ordered remanded for a new trial on a charge of simple battery, since a re-trial of the aggravated battery accusation was barred by the Double Jeopardy Clause.

The state cross-appealed the trial court's order in arrest of judgment on the firearm charge. The district court reversed the order, reasoning that although technically inconsistent with the jury's verdict on the underlying felony charge, the guilty verdict for possession of a firearm during the commission of a felony was within the power of the jury to return. Although holding that the trial court erred, the appellate court declined to simply reinstate the judgment, since the same error in jury instructions that called for a new trial on the battery accusation also required one on the firearm possession charge. The court remanded for a new trial for the misdemeanor of simple battery and the crime of possession of a firearm during the commission of a felony.

In Mahaun v. State, 377 So.2d 1158 (Fla. 1979), the appellants were charged with third-degree felony murder and aggravated child abuse. Patricia Mahaun was found guilty by the jury of third-degree felony murder and child abuse by culpable negligence, a lesser included misdemeanor of the felony of aggravated child abuse. We concluded that by returning the verdict of guilty of the misdemeanor the jury had acquitted her of the felony of aggravated child abuse. We held that since the felony of aggravated child abuse was an essential element of the felony murder, Mrs. Mahaun could not be convicted on the latter charge.

In the present case the jury in effect acquitted petitioner of the felonies of aggravated battery and attempted aggravated battery when it found him guilty of the lesser included offense of simple battery, a misdemeanor. The existence of a felony or an attempted felony is an essential element of the crime of unlawful possession of a firearm during the commission of a felony. § 790.07(2), Fla. Stat. (1977). Therefore, petitioner may not be convicted of that crime. A conviction for unlawful possession of a firearm during the commission of a felony must stand or fall in conjunction with the underlying felony. Ferrell v. State, 358 So.2d 843 (Fla.3d DCA 1978), cert. denied, 366 So.2d 885 (Fla. 1979).

Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.

That portion of the district court decision that reversed the trial court's order in arrest of judgment is quashed. We remand the case to the district court with directions to reinstate the trial court's order and to remand for a new trial on the charge of simple battery.

It is so ordered.

ADKINS, OVERTON and ALDERMAN, JJ., concur.

SUNDBERG, C.J., and ENGLAND and McDONALD, JJ., dissent.

Summaries of

Redondo v. State

Supreme Court of Florida

Oct 9, 1981

403 So. 2d 954 (Fla. 1981)

holding that defendant, acquitted of all felony charges, could not be convicted for unlawful possession of a firearm during commission of a felony

Summary of this case from Mantilla v. State

reversing a conviction for unlawful possession of a firearm during the commission of a felony when the defendant was convicted of only simple battery as the underlying offense

Summary of this case from Wodford v. State

recognizing there is “no duty to retreat when the defender uses non-deadly force to defend himself against an unlawful assault. ‘It seems everywhere agreed that one who can safely retreat need not do so before using non-deadly force.’ W. LaFave & A. Scott, Jr., Criminal Law 395. ‘If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet ... the logic of this position never has been accepted when moderate force is used in self-defense.’ State v. Abbott, 36 N.J. 63, 174 A.2d 881, 885. Indeed all the duty to retreat cases in Florida have involved homicides in which deadly force was employed by the person asserting self defense. 16 Fla. Jur. ‘Homicide’ s 60”

Summary of this case from Pages v. Seliman-Tapia

recognizing there is "no duty to retreat when the defender uses non-deadly force to defend himself against an unlawful assault. 'It seems everywhere agreed that one who can safely retreat need not do so before using non-deadly force.' W. LaFave & A. Scott, Jr., Criminal Law 395. 'If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet . . . the logic of this position never has been accepted when moderate force is used in self-defense.' State v. Abbott, 36 N.J. 63, 174 A.2d 881, 885. Indeed all the duty to retreat cases in Florida have involved homicides in which deadly force was employed by the person asserting self defense. 16 Fla. Jur. 'Homicide' s 60"

Summary of this case from Pages v. Seliman-Tapia

In Redondo v. State, 403 So.2d 954 (Fla. 1981), our supreme court held that a conviction for unlawful possession of a firearm while engaged in the commission of a felony could not stand when the jury, instead of convicting the defendant for committing the alleged felony, found that he had committed only a misdemeanor.

Summary of this case from State v. Connelly

In Redondo v. State, 403 So.2d 954 (Fla. 1981), a jury found the defendant guilty of displaying a firearm in the commission of a felony but failed to find the defendant guilty of any felony. The distinction between these cases and the case at bar is obvious.

Summary of this case from Eaton v. State

In Redondo, the defendant was charged with aggravated battery and unlawful possession of a firearm while engaged in the commission of a felony.

Summary of this case from Gerald v. State

In Redondo v. State, 403 So.2d 954 (Fla. 1981), the court vacated as legally inconsistent a conviction for possession of a firearm during the commission of a felony coupled with the jury's acquittal of the felony, aggravated battery and attempted aggravated battery charges.

Summary of this case from Emory v. State

Summary of this case from State v. Connelly

In Redondo, the court held a conviction for displaying a firearm in the commission of a felony impermissible in the absence of a conviction of a felony.

Summary of this case from Debiasi v. State

In Redondo v. State, 403 So.2d 954 (Fla. 1981), the supreme court recognized that the dependent relationship between the "greater" offense of felony murder and its underlying felony was legally and logically analogous to the same dependent relationship between the firearm offense (§ 790.

Summary of this case from Simmons v. State

In Redondo, the defendant was charged with aggravated battery and the jury found the defendant guilty of the lesser offense of simple battery, a misdemeanor, in addition to possession of a firearm during the commission of a felony.

Summary of this case from Wishop v. State

In Redondo the court again was presented with a case wherein there was a misdemeanor conviction on the underlying felony charge, and the result was governed by the rationale of Mahaun.Pitts is clearly distinguishable from the instant case on the same basis that it distinguished Redondo and Mahaun.

Summary of this case from Davidson v. State

In Redondo, the defendant was charged with aggravated battery and unlawful possession of a firearm while engaged in the commission of a felony.

Summary of this case from Marshall v. State

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