Florida/Georgia Personal Injury & Workers Compensation

conducted. 17 29 C.F.R. § 790.7(f). 18 The plain language

...Page 98 of the manual provides an instruction based on Section 790.05, Florida Statutes (1981). That law was repealed in *1206 1987; therefore, the instruction should be removed. See Chapter 87-24, Laws of Florida. 6. Page 99 of the manual provides an instruction based on Section 790.07(1) and (2), Florida Statutes....

...[intentionally or knowingly caused [great bodily harm to (victim)]] [permanent disability to (victim)]] [permanent disfigurement to (victim)]] b. [used a deadly weapon.] c. [knew or should have known that (victim) was pregnant.] 3. The court in State v. Potts 526 So.2d 63 (Fla. 1988) found section 790.07(2) "unconstitutional to the extent it purports to penalize a person who is under indictment." Paragraph 2 of the jury instruction on page 99 of the manual, therefore, should be amended by striking "[under indictment or information]" an...

...e Attempt firearms — 790.01(2) Carrying pistol or None Attempt repeating rifle without first obtaining license — 790.05 790.06 Persons engaged in None Attempt (may be applicable criminal offense, when concealed weapon having weapons is charged) — 790.07(1) Carrying concealed weapons — 790.01(1) Improper exhibition of dangerous weapons — 790.10 Persons engaged in None Attempt (may be applicable criminal offense, when concealed firearm having weapons is charged) — 790.07(2) Carrying concealed firearm — 790.01(2) Improper exhibition of dangerous firearms — 790.10 Discharging firearms None Attempt in public — 790.15 Furnishing weapons to None Attempt minors under 18 years of age, etc....

...6 Under section 924, an offense can only be made out if the carrying of the firearm is in violation of federal, state, or local law. United States v. Bower, 575 F.2d 499 (5th Cir.), cert. denied, 439 U.S. 983 , 99 S.Ct. 572 , 58 L.Ed.2d 654 (1978). The indictment alleged that Rouco had violated Fla.Stat. § 790.07(2) (1983) by “displaying], use[ing], threatening], or attempting] to use” a firearm during the commission of a felony....

...Explanation of proposed instruction: This instruction is new based on F.S. 784.07(2)(d), which was created in 1988. The wording is similar to the instruction for battery of a law enforcement officer on page 93 of the manual. [Page A-36] *1214 PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING WEAPON (Amended) F.S. 790.07(1) and (2) Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements; 1....

...rying concealed None Attempt firearms — 790.01(2) Carrying pistol or None Attempt repeating rifle without first obtaining license — 790.06 Persons engaged in None Attempt (may be criminal offense, applicable when having weapons concealed weapon — 790.07(1) is charged) Carrying concealed weapons — 790.01(1) Improper exhibition of dangerous weapons — 790.10 Persons engaged in None Attempt (may be criminal offense, applicable when having weapons — concealed firearm 790.07(2) is charged) Carrying concealed firearm — 790.01(2) Improper exhibition of dangerous firearms — 790.10 [Page A-77] *1255 CHARGED OFFENSES CATEGORY 1 CATEGORY 2 Discharging firearms None Attempt in public — 790.15 Furnishing weapons to None Attempt minors under 18 years of age, etc....

...Brown category four lesser included offenses have nothing to do with double jeopardy or with this case. Baker's indictment charged him with first-degree premeditated murder, section 782.04, Florida Statutes (1979), and with use of a firearm during the commission of a felony, section 790.07, Florida Statutes (1979)....

...§ 782.04(1). The statutory elements of use of a firearm during commission of a felony are: (a) while committing or attempting to commit any felony, (b) displaying, using, or threatening or attempting to use any firearm or carrying a concealed firearm. § 790.07(2)....

...on of a firearm, which arose from one criminal act. The district court affirmed both convictions and certified the following question of great public importance: In the wake of State v. Gibson, 452 So.2d 553 (Fla. 1984), may an offense proscribed by section 790.07(2), Florida Statutes, ever be considered a lesser included offense of the proscription of section 812.13(1) and (2), Florida Statutes? Id....

...We find it appropriate to restate the question as follows: Did the legislature intend that a defendant could be convicted of the offense of armed robbery under section 812.13(1) and (2)(a), Florida Statutes, and the offense of displaying a firearm or carrying a concealed firearm, under section 790.07(2), Florida Statutes, when the offenses resulted from a single act? We find, in accordance with our recent decision in Carawan v....

...ense. Hall contends, while he may have been properly convicted of first-degree robbery while carrying a firearm under sections 812.13(1) and 812.13(2)(a), Florida Statutes (1983), he cannot also be convicted of displaying or carrying a firearm under section 790.07(2)....

...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. ... (Emphasis supplied.) In Gibson, we explained that section 790.07(2) proscribes two distinct offenses: (1) use, display, or attempt to use any firearm in a felony, and (2) carrying a concealed firearm in a felony. We held in Gibson that the offense charged under 790.07(2), with regard to using, displaying, or attempting to use any firearm in a felony, was not a lesser offense to armed robbery with a firearm....

...to trafficking. In the instant case, Hall was charged with both committing a robbery while carrying a firearm, under 812.13(1) and (2)(a), and the use and display of a firearm and the carrying of a concealed firearm while committing a felony, under 790.07(2)....

...nt and that there was no double jeopardy bar to "separate prosecutions and punishment of separate statutory crimes arising *681 in the same course of events." Id. at 558. We then examined the statutory elements of sections 812.13(1), (2)(a)-(b), and 790.07(2), Florida Statutes (1977), and determined that they defined separate criminal offenses....

...d theft. See State v. Brown, 633 So.2d 1059, 1060-61 & n. 1 (Fla.1994). The "carrying a concealed weapon while committing a felony" offense contains the elements of carrying a concealed weapon while committing or attempting to commit any felony. See § 790.07(2), Fla....

...State, 559 So.2d 410 (Fla. 2d DCA 1990). [*] Cleveland was convicted of and sentenced for the two crimes of attempted robbery with a firearm, sections 812.13(1) and (2)(a) and 777.04, Florida Statutes (1989), and use of a firearm while committing a felony, section 790.07(2), Florida Statutes (1989)....

...We disagree and hold that Hall still controls. It should be noted that Cleveland's attempted robbery conviction was enhanced from a second-degree felony to a first-degree felony because of the use of the firearm. Upon this enhancement Cleveland was punished for all the elements contained in section 790.07(2) and appropriately sentenced....

...We hold that when a robbery conviction is enhanced because of the use of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under section 790.07(2)....

...ry 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....

...(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The other offense respondents were convicted of, use or display of a firearm during the commission of a felony, is defined in section 790.07(2), Florida Statutes (1977), which provides as follows: (2) 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....

...the course of committing the robbery. § 812.13(1), (2)(a), Fla. Stat. (1977). The elements of the other offense in question are (1) the display, use, or threat or attempt to use; (2) a firearm; (3) while committing or attempting to commit a felony. § 790.07(2), Fla....

...ADKINS and OVERTON, JJ., dissent. NOTES [1] The district court of appeal once described the second offense as "possession" of a firearm while committing a felony, then later said that the offense was "possession and display," 403 So.2d at 1020, under section 790.07, Florida Statutes (1977). The relevant paragraph of section 790.07, paragraph (2), proscribes two distinct offenses, which are: (1) use, display, or attempt or threat to use a firearm while committing a felony and (2) carrying a concealed firearm while committing a felony....

...ced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively. [4] As was stated above in footnote 1, section 790.07(2) also proscribes the discrete offense of carrying a concealed firearm while committing or attempting to commit a felony....

...wful possession of a firearm while committing a felony." It was not made clear whether that description of the offense silently encompassed the element of concealment. See footnotes 1 and 3 above. This distinction between the two offenses defined in section 790.07(2) might make a difference under the Blockburger rule....

...and knowingly, while committing a felony, to-wit: Robbery, did unlawfully display, use, threaten or attempt to use a firearm, to-wit: a pistol, a more particular description of which is to the State Attorney unknown; in violation of Florida Statute 790.07(2) contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida." The reasonable inference to be drawn from the two counts of the information is that the two violations charged, robbery under F.S.Section 813.011, F.S.A., and the displaying or using of a firearm under F.S. Section 790.07(2), F.S.A., occuring on June 10th, 1971, were a part of the same transaction or crime involving the robbery of Barbara Kash....

...The elements of first-degree murder relevant to the present case, as defined in section 782.04(1)(a), Florida Statutes (1981), are: (i) the unlawful (ii) killing (iii) of a human being (iv) when perpetrated from a premeditated design to effect the death of the person killed (or any other human being). In relevant part, section 790.07(2), Florida Statutes (1981), the second statutory offense for which Baker was convicted, defines the elements of that offense as: (i) displaying, using, threatening to use or attempting to use a firearm (ii) while committing or attempting to commit any felony....

...APPLYING THE CORRECT TEST IN THE INSTANT CASE: The question in this case is whether constitutional double jeopardy principles bar a trial, conviction and sentence for the offense of first degree premeditated murder (§ 782.04(1)(a), Fla. Stat.) and also for the offense of using a firearm in the commission of a felony (§ 790.07(2), Fla....

...ng poisoned chocolates, or in any other manner that man can conceive. Therefore, neither the use of a firearm nor any other particular method or manner of causing death is an essential element of the offense of first degree premeditated murder. [43] Section 790.07(2), Florida Statutes, provides: Whoever, while committing, or attempting to commit any felony ......

...By holding that the conviction of the underlying felony in the instant case is the very act which bars the appellant's sentence for the firearm offense, the majority has made it legally impossible for one to ever be sentenced for a conviction of a violation of the offense created by section 790.07(2), Florida Statutes....

...a premeditated design to effect the death of one Josephine Baker, a human being, did kill and murder Josephine Baker by shooting her with a firearm, to-wit: a pistol COUNT TWO CHARGE: Use of a Firearm in the Commission of a Felony in Violation of F.S. 790.07(2) SPECIFICATION OF CHARGE: In that Charles L....

...e statutory prohibition of the basic crime (see section 810.02(2) as to burglary, section 812.13(2) as to robbery, and section 794.011(3) as to sexual battery); by separate enhancing statutes ( see § 775.087); or by separate criminal statutes ( see § 790.07)....

...prohibition is constitutionally immaterial. [46] Especially in view of Redondo v. State, 403 So.2d 954 (Fla. 1981), it is arguable that the whole felony, committed or attempted by use of a firearm, is a composite element of the offense prohibited by section 790.07(2), Florida Statutes....

...atutes; (VI) attempted first degree murder of Spurlin, section 777.04(1), Florida Statutes; (VII) attempted first degree murder of Moore, section 777.04(1), Florida Statutes; and (VIII) possession of a weapon in the commission of a criminal offense, section 790.07(2), Florida Statutes....

...ve intent. In the recent case of Hall v. State, 517 So.2d 678 (Fla. 1988), the Florida Supreme Court, applying Carawan, held that convictions for both armed robbery under section 812.13(2)(a) and possession of a firearm while committing a felony per section 790.07(2) cannot stand for the single act of displaying or carrying a firearm while committing a robbery....

...In Brownlee, a defendant was charged in one count of an information with display of a short barreled shotgun while committing a felony. He was convicted on evidence showing that he displayed or used a pistol while in the commission of a felony, in violation of Section 790.07(2), Florida Statutes (1981)....

...rrence's conviction under Count II, and, therefore, reduction to simple assault. With regard to Count III, there is no fundamental defect. The information alleged: Use of a Firearm While Committing or Attempting To Commit a Felony, in Violation of F.S. 790.07(2), ....

...nd not both offenses because that position is an application of the old "single transaction rule" which was abolished by section 775.021(4), Florida Statutes. [12] Since the offense of simple assault (§ 784.011, Fla. Stat.) and the firearm offense (§ 790.07(2), Fla....

...tes that separate sentences be imposed on conviction as to each such separate criminal offense. I would reverse the conviction of aggravated assault under Count II. I would affirm the conviction of the firearm offense under Count III, a violation of section 790.07(2), Florida Statutes....

...We have jurisdiction, article V, section 3(b)(4), FLorida Constitution, and disapprove in part and approve in part the instant decision. A two-count information charged Monroe with robbery with a firearm under section 812.13, Florida Statutes (1977), and unlawful possession of a firearm while committing a felony under section 790.07, Florida Statutes (1977)....

...Defendant's second argument is that the trial court erred in denying the defendant's motion for arrest of judgment following the jury's rendition of inconsistent verdicts. The defendant was charged with possession of a firearm during the commission of a felony, to wit: trafficking in cocaine. See § 790.07, Fla....

...the lesser offense of attempted trafficking in cocaine. The jury acquitted the defendant of the charges of both trafficking and attempted trafficking. The jury convicted the defendant of possession of a firearm during the commission of a felony. Subsection 790.07(2), Florida Statutes (1989), provides, "Whoever, while committing *460 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... ." (Emphasis added). Here, the charge under section 790.07 was that the defendant had possessed a firearm while committing or attempting to commit the felony of trafficking in cocaine....

...Id.; see McCray v. State, 397 So.2d 1229, 1230 n. 3 (Fla. 3d DCA 1981), approved, 425 So.2d 1 (Fla. 1983). The supreme court reasoned that because the evidence would have supported a finding of attempted aggravated battery, and because the charge under section 790.07 could be sustained where the jury found that there was unlawful possession of a firearm while engaged in an attempt to commit the felony, it followed that there was no necessary inconsistency between the acquittal of aggravated battery and the conviction on the unlawful possession of firearm charge....

...In the present case, the jury acquitted on the charge of trafficking and also on the charge of attempted trafficking. That being so, there is a fatal inconsistency between the acquittal on those substantive charges and the conviction of the firearm charge under section 790.07. See Ashley v. State, 493 So.2d 1079, 1080 (Fla. 3d DCA 1986); Ayrado v. State, 431 So.2d 320, 321-22 (Fla. 3d DCA 1983). The trial court took a broader view of the Pitts decision and that part of section 790.07 which refers to " any felony." § 790.07(2), Fla. Stat. (1989) (emphasis added). The court concluded that the wording of the statute permitted the conviction under section 790.07 to be sustained so long as the defendant was also convicted of any other felony....

...." Defendant was acquitted on trafficking and attempted trafficking. Where the case was tried on the theory that the defendant possessed a firearm while committing a specified felony, a wholly separate felony may not be substituted post-trial in order to support the conviction under section 790.07....

...5th DCA 1986), where the other felony is identified, the identification of the greater offense is deemed to include attempts and lesser included offenses. Thus, where the charging document identifies the felony, and the defendant is convicted of an attempt or lesser included felony, the conviction under section 790.07 will be sustained....

...Some such offenses requiring by their definitions the existence of another "underlying" felony offense are the felony murder offenses described in section 782.04(1)(a)2. and (3) and (4), Florida Statutes, and the weapon and firearm offenses described in sections 790.07(1) and (2), Florida Statutes....

...rder and the underlying felony. In Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), this court recently followed Pinder. Also see Enriquez v. State, 449 So.2d 845 (Fla. 3d DCA 1984). Appellant was convicted of the firearm offense (a violation of § 790.07(2), Fla....

...re in substance "the same offense" within the meaning of the constitutional double jeopardy clauses. In State v. Gibson, 452 So.2d 553 (Fla. 1984), the supreme court held that a defendant could be convicted and punished for both the firearm offense (§ 790.07(2), Fla....

...One of the issues in Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), quashed, 456 So.2d 419 (Fla. 1984), was the double jeopardy question relating to the constitutionality of a conviction for the offense of use of a firearm in commission of a felony *679 (firearms offense) (§ 790.07(2), Fla....

...Stat.) and also a conviction for its underlying felony. There were three possible views in Baker, only one of which can be correct. The majority in Baker followed its interpretation of State v. Hegstrom, 401 So.2d 1343 (Fla. 1981), and held that Baker could be convicted of both the firearm offense (§ 790.07(2), Fla....

...State (page 62, Part III, ¶ 12), [3] and that both the majority and dissent in Baker were in error and that the third alternative in Baker, and the correct view, was that when a "main" offense requires the commission of an underlying felony (as in felony murder and in the weapon and firearm offense (§§ 790.07(1) and (2), Fla....

...al constitutions prohibit a person from being put in jeopardy (i.e., from being charged, tried, convicted or sentenced) for both such offenses. See Bell v. State, 437 So.2d 1057 (Fla. 1983). This view and the fact that the statutory firearm offense (§ 790.07(2), Fla....

...l underlying felony which was committed, or attempted, by use of the firearm, appears to be the proper conceptual basis for the recent holdings by the Fourth District Court of Appeal that double jeopardy prohibits convictions of the firearm offense (§ 790.07(2), Fla....

...Marshall and Burke and held that under constitutional double jeopardy as well as under section 775.021(4), Florida Statutes, as amended, a person could not be charged, prosecuted, tried, convicted or punished for both the statutory firearm offense (§ 790.072, Fla....

...) felony committed or attempted by use of a firearm, rather than by attempting to make the extra factual elements relating to the use of a firearm in commission of the (underlying) felony a separate offense from the (underlying) felony as is done by section 790.07, Florida Statutes....

...nally tried and convicted for an offense but could not be legally sentenced for committing it. [3] See 425 So.2d 36 at 62 n. 46, conceding the plausibility of the view that the whole underlying felony is one composite element of the firearm offense (§ 790.07(2), Fla....

"principal activity" within the meaning of 29 C.F.R. § 790.7(c) (interpreting 29 U.S.C. § 254(a)) proves too

...State, 285 So.2d 12 (Fla. 1973), we have jurisdiction under Article V, Section 3(b)(3), Florida Constitution. Both petitioners were convicted of the crime of robbery and the crime of display of a firearm during the commission of a felony under Sections 813.011 and 790.07(2), Florida Statutes (1973), respectively....

...ENGLAND, C.J., and ADKINS, OVERTON, SUNDBERG and HATCHETT, JJ., concur. ALDERMAN, J., dissents with an opinion. ALDERMAN, Justice, dissenting. Defendants were convicted of the crime of robbery under Section 813.011, Florida Statutes (1973), and the crime of display of a firearm under Section 790.07, Florida Statutes (1973)....

...I dissent from the majority opinion and agree with the District Court of Appeal's decision which upholds separate sentences for, what I find to be, two separate and distinct offenses arising out of the same incident. It is clear from a reading of Sections 813.011 and 790.07 that the Legislature intended to create two separate offenses leading to two separate convictions and separate sentences....

...I The facts pertinent to the above issue are as follows. The defendant Ricardo Redondo who was charged in a two-count information with aggravated battery [§ 784.045, Fla. Stat. (1979)] and unlawful possession of a firearm while engaged in the commission of a felony [§ 790.07(2), Fla....

...s used. And it is easy to see the reason this happened. As the jury was told, a conviction for aggravated battery with a firearm carries with it a minimum mandatory three-year sentence under § 775.087(2). While the possession offense, proscribed by § 790.07(2), is a second degree felony, it involves no such requirement....

...correct result. The state charged Boivin with attempted first-degree murder (sections 777.04 and 782.04, Florida Statutes (1979)), aggravated battery (section 784.045, Florida Statutes (1979)), and possession of a firearm in commission of a felony (section 790.07, Florida Statutes (1979))....

...The State charged appellant by information with two counts of attempted first-degree murder with a firearm, pursuant to Sections 782.04, 777.04, and 775.087, Florida Statutes; one count of use of a firearm during the commission of a felony, pursuant *1134 to Section 790.07(2), Florida Statutes; and one count of possession of a firearm by a convicted felon, pursuant to Section 790.23, Florida Statutes....

...elon, all sentences to run concurrently. The trial court imposed a three-year mandatory minimum for possession of a firearm. The recommended guidelines sentence was 20 years, with a range of 17 to 20 years. Appellant argues that his conviction under Section 790.07(2), Florida Statutes, for use of a firearm during the commission of a felony, is a lesser-included offense of his convictions under Sections 782.04, 777.04, and 775.087, Florida Statutes, for attempted first-degree murder with a firearm....

...st-degree murder; therefore, conviction under Section 775.087, Florida Statutes, mandates reclassification of attempted first-degree murder to a life felony. Id. at 152. Unlike the instant case, Strickland did not involve a separate conviction under Section 790.07(2), Florida Statutes. Nothing in Strickland precludes this court from determining that a conviction under Section 790.07(2), Florida Statutes, is a lesser-included offense of a conviction under Sections 782.04, 777.04, and 775.087, Florida Statutes. The elements of the offense of use of a firearm during the commission of a felony are set forth in Section 790.07(2), Florida Statutes: "Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm is guilty of felony of the second degree......

...elements of attempt under Section 777.04, Florida Statutes; and use of a firearm during the commission of a felony under Section 775.087, Florida Statutes. Appellant's separate conviction for use of a firearm during the commission of a felony under Section 790.07(2), Florida Statutes, requires the State to prove all the elements of the underlying felony, attempted first-degree murder, and use of a firearm in the commission of that felony....

...State, 415 So.2d 1265, 1267 (Fla. 1982). We conclude that appellant's conviction for use of a firearm during the commission of a felony is a lesser-included offense of his convictions for life felony attempted first-degree murder. Furthermore, appellant's conviction pursuant to Section 790.07(2), Florida Statutes, cannot stand under the rationale of Hall v....

...In *1135 Hall, the defendant was charged with committing a robbery while carrying a firearm, under Section 812.13(1) and (2)(a), Florida Statutes, and the use and display of a firearm and the carrying of a concealed firearm while committing a felony, under Section 790.07(2), Florida Statutes. The Florida Supreme Court held that "the Legislature had no intent of punishing a defendant twice for the single act of displaying a firearm or carrying a firearm while committing a robbery." Id. Here, as in Hall, appellant's conviction under Section 790.07(2), Florida Statutes, enhances the primary offenses twice for using the same weapon and constitutes dual punishment for one single act under the principles set forth in Hall, supra . Accordingly, because of the decision of the Florida Supreme Court in the Hall case, supra, we vacate appellant's conviction and sentence under Section 790.07(2), Florida Statutes....

...This cause is remanded for re-sentencing. Affirmed in part; Reversed in part; Remanded. ORFINGER and SHARP, JJ., concur. NOTES [1] § 777.04(1) and § 782.04(1)(a), Florida Statutes, 1987. [2] § 790.19, Florida Statutes, 1987. [3] § 784.021(1)(a), Florida Statutes, 1987. [4] § 790.07(2), Florida Statutes, 1987....

...812.133(2)(a), Florida Statutes (1999), (count III), robbery with a firearm in violation of section 812.13(2)(a), Florida Statutes (1999), (count V), and possession of a firearm during the *1173 commission of the other four felonies in violation of section 790.07(2), Florida Statutes (1999), (count IV)....

...Rehearing Denied July 6, 1988. Herbert Henderson, in Pro. Per. Robert A. Butterworth, Atty. Gen., for appellee. Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ. PER CURIAM. Henderson was convicted of "Possession of a Firearm in the Commission of a Felony," section 790.07, Florida Statutes (1987), and "Second Degree Murder by Use of a Firearm," sections 782.04(2) and 775.087, Florida Statutes (1987)....

...onvicted and punished, or his punishment enhanced, twice because of one misuse one time of a firearm. When the firearm is an essential enhancing element of the *744 underlying offense ... the defendant should not also be convicted and punished under section 790.07(2), Florida Statutes, for that same misuse of the same firearm....

...See Hall v. State, 517 So.2d 678, 678 (Fla. 1988) (defendant cannot be convicted of both "the offense of armed robbery under section 812.13(1) and (2)(a), Florida Statutes, and the offense of displaying a firearm or carrying a concealed firearm, under section 790.07(2), Florida Statutes, when the offenses resulted from a single act"); Carawan v....

...The jury was charged on Count I as to the offense alleged, aggravated assault, and simple assault, as a lesser included offense. Concerning Count II, the court instructed the jury, without objection and in accordance with the express terms of the applicable statute, Section 790.07(2), Florida Statutes (1975), [1] that the defendant was guilty of the possession charge if "while committing or attempting to commit [the] felony of aggravated assault, [he] did display or attempted to use or display a weapon or firear...

...I respectfully dissent from the majority opinion. Appellant was charged with aggravated assault, and display of a firearm during the commission of a felony. He was acquitted of the felonious assault, [1] but was convicted of the display defined in Section 790.07, Florida Statutes (1979): (2) Whoever, while committing or attempting to commit any felony ......

...Gen., West Palm Beach, for appellant. Richard L. Jorandby, Public Defender and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellee. BARKETT, Justice. We have on appeal Potts v. State, 526 So.2d 104 (Fla. 4th DCA 1987), which declared unconstitutional a portion of section 790.07(2), Florida Statutes (1985)....

...The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime, as it has attempted to do here. We therefore approve and adopt the district court's opinion in its entirety as our own. Section 790.07(2), Florida Statutes (1985), is facially unconstitutional to the extent it purports to penalize a person who is under indictment with greater severity than one who is accused of no crime....

...armed robbery in violation of Florida Statutes § 812.13, conspiracy to commit armed robbery and kidnapping in violation of Florida Statutes §§ 812.13, 787.01, 775.087, and 777.04, and possession of a firearm while engaged in a criminal offense in violation of Florida Statutes § 790.07....

...NOTES [1] §§ 787.01(1)(a) & (2), Fla. Stat. (1985). [2] §§ 777.04(1) & (4); 812.13(1) & (2)(a); 775.087(2)(a), Fla. Stat. (1985). Kirtsey was convicted of the attempted robbery and a third charge, use of a firearm while attempting to commit a felony. § 790.07(2), Fla....

...This appellant was informed against for robbery as condemned by Section 813.011, Florida Statutes, F.S.A., in the first count and for the "display, use, threaten and attempt to use a firearm, to wit, a pistol while committing or attempting to commit a felony", as condemned by Section 790.07(2), Florida Statutes, F.S.A....

...We conclude that the trial court erred in denying Setzer's motion to withdraw his guilty plea without holding an evidentiary hearing and, therefore, reverse. Appellant was charged with committing the offenses of false imprisonment, § 787.02, Fla. Stat. (1989), and possession of a firearm in the commission of a felony, § 790.07, Fla....

...mposed on Count II [2] upon a holding (1) the crimes of (a) robbery during the course of which the defendant carried a firearm, § 812.13(2)(a), Fla. Stat. (1979), and (b) possession and display of that firearm during the commission of that robbery, § 790.07, Fla....

...Before HENDRY, SCHWARTZ and NESBITT, JJ. NESBITT, Judge. The defendant appeals his adjudication and sentence for: (1) robbery with a firearm contrary to Section 812.13, Florida Statutes (1977) (Count I); and (2) display of a firearm in the commission of a felony in violation of Section 790.07, Florida Statutes (1977) (Count II)....

...State, Case No. 42,760, filed March 9, 1973, said: "The reasonable inference to be drawn from the two counts of the information is that the two violations charged, robbery under F.S. Section 813.011, F.S.A., and the displaying or using of a firearm under F.S. Section 790.07(2), F.S.A., occurring on June 10th, 1971, were a part of the same transaction or crime involving the robbery of Barbara Kash....

...diligence, or (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively. [2] § 812.13(2)(a), Fla. Stat. (1985). [3] § 784.021(1)(a), Fla. Stat. (1985). [4] § 790.07, Fla....

...1987), stated: In the instant case, Hall was charged with both committing a robbery while carrying a firearm, under 812.13(1) and (2)(a), and the use and display of a firearm and the carrying of a concealed firearm while committing a felony, under 790.07(2)....

...life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender: ... . (b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon. [3] Section 790.07(2), Florida Statutes (1985) states: (2) 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....

...egree burglary and carrying a concealed firearm during the commission of a felony. The record before us does not support a finding of separate acts. [5] Based upon the other language in the Hall opinion, we believe the supreme court was referring to section 790.07(2), Florida Statutes (1985)....

...We agree that multiple punishments are not warranted and reverse in part. Section 784.045(1)(b) (aggravated battery) requires two elements: the commission or attempted commission of a battery (a misdemeanor), and the use of a deadly weapon. [3] In contrast, section 790.07(1) (possession) requires two different elements: the commission or attempted commission of a felony; and display, threat or attempt to use a weapon....

...ate. Carawan v. State, 515 So.2d 161 (Fla. 1987). However, our examination does not cease with a Blockburger evaluation. Carawan. We must next examine all relevant factors in an attempt to discern any legislative intent behind the statutes. Carawan. Section 790.07 does not authorize "across-the-board" multiple punishments because subsection (3) specifically excludes certain offenses and "other similar offenses." Neither is it clear from the language of the statute that the legislature intended to preclude multiple punishments. On its face, section 790.07(1) specifically includes "use" of a weapon while attempting to commit a felony, and an interpretation of that statute could include aggravated battery....

...The sentence on the aggravated battery offense must then be recalculated without the improper additional conviction. In all other respects the judgment is affirmed. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DAUKSCH and DANIEL, JJ., concur. NOTES [1] § 784.045(1)(b), Fla. Stat. (1985). [2] § 790.07(1), Fla....

...[3] Section 784.045(1), Florida Statutes (1985) states as follows: (1) A person commits aggravated battery who, in committing battery: (a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or (b) Uses a deadly weapon. [4] Section 790.07(1), Florida Statutes (1985) states: (1) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any weapon or electric weapon or device or carries a concealed weapon is guilty of a felony of the third degree......

...Gen., Daytona Beach, for appellee. COWART, Judge. The defendant took money from a grocery clerk by threatening him with a knife. Based on this one act, the defendant was convicted of armed robbery (§ 812.13(2)(a), Fla. Stat.), possession of a weapon in the commission of a felony (§ 790.07), and aggravated assault with a deadly weapon (§ 784.021)....

...to repair shop in Opa-locka, Florida. He was also charged with unlawful use of a firearm in violation of section 782.04, Florida Statutes (2001), unlawful discharge of the firearm resulting in death or serious bodily harm upon McCrae in violation of section 790.07(2), Florida Statutes (2001), and possession of a firearm by a convicted felon....

...Defendant was charged by information with burglary of a dwelling while armed, with the intent to commit the offense of assault or battery in violation of Section 810.02, Fla. Stat. (1977), sexual battery in violation of Section 794.011(3), Fla. Stat. (1977), and use of a firearm in the commission of a felony in violation of Section 790.07(2), Fla....

...bery are facets of the same transaction for which only one sentence may be imposed. Defendants were convicted of robbery (section 813.011, Florida Statutes (1973)) and unlawful possession and display of a firearm while engaged in a criminal offense (section 790.07, Florida Statutes (1973)). By enactment of sections 813.011 and 790.07, it is clear that the legislature intended to create two separate offenses leading to two separate convictions and two separate sentences....

...V LEGALITY OF SENTENCES Appellant raises two points concerning the legality of the two sentences which were imposed. First, he contends that the 20 year sentence under Count I, for use of a firearm while committing a felony in violation of Florida Statute 790.07(2), is illegal because on April 20, 1972, at the time he was sentenced, this crime by statute had been made a felony of the second degree, punishable by a maximum imprisonment of 15 years....

...in the vicinity of K-Mart parking lot, Fern Park, Florida willfully and unlawfully display, use, threaten, or attempt to use a firearm, to-wit: a pistol, while committing or attempting to *187 commit a felony, to-wit: robbery, by pointing said firearm at James I. Jones, in violation of Florida Statute 790.07(2)." Count II, of the Information charges that the appellant: "......

...rt Vause. The state indicted Vause for first-degree premeditated murder (section 782.04, Florida Statutes (1979)), shooting at or into an occupied vehicle (section 790.19, Florida Statutes (1979)), and use of a firearm during commission of a felony (section 790.07, Florida Statutes (1979))....

...o a vehicle. We also recently held that the use of a firearm during the commission of a felony is not a necessarily lesser included *142 offense of first-degree murder. State v. Baker, 456 So.2d 419 (Fla. 1984). A review of subsections 782.04(4) and 790.07(2) demonstrates that it is possible to commit each of those crimes without necessarily committing the other because they contain different elements....

...ADKINS, J., concurs in result only. OVERTON, J., dissents. SHAW, Justice, concurring in result only with opinion. I agree that section 790.19, Florida Statutes (1979), is not a lesser included offense of section 782.04, Florida Statutes (1979), and section 790.07, Florida Statutes (1979), is not a lesser included offense of 790.19....

...AFFIRMED in part; VACATED in part. ORFINGER, J., concurs. COWART, J., concurs specially with opinion. COWART, Judge, concurring specially. The authority for vacating the defendant's separate conviction for use of a firearm in the commission of a felony (§ 790.07(2), Fla....

...5th DCA 1988) and the dissent in Teemer v. State, 531 So.2d 748 (Fla. 5th DCA 1988). Compare Wright, Richardson, Cardwell, Neal (527 So.2d 966), Willingham and Crayton, with the inconsistent holdings in Clark and Teemer. NOTES [1] §§ 782.07, 777.04(1) Fla. Stat. (1987). [2] § 790.07, Fla....

...Wainwright, 463 So.2d 207 (Fla. 1985); Knight v. State, 394 So.2d 997 (Fla. 1981). [2] Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). [3] §§ 782.04(1)(a)1, 777.04(4)(a), 775.087, Fla. Stat. [4] § 790.19, Fla. Stat. [5] § 790.07, Fla....

...be sentenced separately for each of the two criminal offenses. State v. Gibson, No. 61,325 (Fla. February 17, 1983) [1983 FLW 76] held that all of the elements of the offense of display of a firearm during the commission of a felony (a violation of section 790.07(2), Florida Statutes, (1981)) were included within the elements of the offense of armed robbery (a violation of section 812.13(2)(a), Florida Statutes (1981)), therefore, the section 790.07(2) offense was a lesser included offense of the section 812.13(2)(a) offense, as was held in State v....

...1981), and under section 775.021(4), Florida Statutes (1981), a separate sentence could not be imposed for the lesser included offense. However, this case involves the question of whether aggravated assault (§ 784.021(1)(a), Fla. Stat. (1981)) not display of firearm (§ 790.07(2), Fla....

...1951), and it is also elemental that an accused cannot be convicted of an offense for which no charges have been brought. However, the variance between the allegation in the information and the proof in this case was not fatal. The offense, which is set out in Count II, is bottomed on Section 790.07, Florida Statutes (1981) which provides: (2) Whoever, while committing or attempting to commit any felony ... displays, uses ... any firearm ... is guilty of a felony of the second degree... . It is not essential to a conviction under Section 790.07(2) that the firearm used be described with particularity....

...Asst. Public Defender, for appellant. Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee. Before SCHWARTZ, NESBITT and BASKIN, JJ. SCHWARTZ, Judge. The defendant was charged with the armed robbery of Charles Philp and, under Section 790.07(2), Florida Statutes (1975), with the separate crime of the possession of a firearm in the commission of that robbery....

...of the higher offenses of robbery, as charged in that count, and attempted robbery, concerning which it was also instructed. [3] West v. State, 53 Fla. 77, 43 So. 445 (1907); Fla.R.Crim.P. 3.640(a). This was plainly inconsistent with a violation of Section 790.07(2), Florida Statutes (1975), [4] of which an essential element was the commission or attempted commission of that very felony....

...State, 294 So.2d 691 (Fla. 1st DCA 1974), cert. denied, 307 So.2d 185 (Fla. 1975); but cf., Reeder v. State, 399 So.2d 445 (Fla. 5th DCA 1981). Thus, notwithstanding the clearly-expressed contrary intent of the legislature, and, in many cases, of the jury as well, § 790.07 has judicially been rendered entirely ineffective. [3] This case is thus entirely distinguishable from McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981). There, verdicts of not guilty of the underlying felony of aggravated assault and guilty of violating § 790.07(2) were held not inconsistent because the latter conviction could have been based on an attempted aggravated assault and the jury was not charged on attempt as a lesser offense of the substantive charge....

...[1] The statutory elements of unlawful possession of a firearm while engaged in a criminal offense are (a) displaying, using or threatening or attempting to use any firearm or carrying a concealed firearm, (b) while committing or attempting to commit any felony. § 790.07(2), Fla....

...DiGuilio, 491 So.2d 1129 (Fla. 1986). Therefore, we reject appellant's claim of entitlement to a new trial on this ground. The appellant also contends that he cannot be convicted under both section 790.19, Florida Statutes (1987) (shooting into an occupied vehicle) and section 790.07(2), Florida Statutes (1987) (use of a firearm during commission of the felony of shooting into an occupied vehicle) based upon evidence that he fired one time into an occupied vehicle....

...1668, 84 L.Ed.2d 740 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Therefore, we affirm the conviction for shooting into an occupied vehicle per section 790.19 and reverse the conviction for the ancillary offense of use of a firearm per section 790.07(2)....

...el Florida statute." [6] Fla. R.Crim. P. 3.701(d)(5)(B)(1993). Defendant was convicted of three federal charges. First, defendant was convicted of possession of a firearm in relation to a drug trafficking crime pursuant to 18 U.S.C. § 924(c)(1)(A). Section 790.07(2), Florida Statutes (1993), is the most analogous Florida Statute. It provides, "Whoever, while committing or attempting to commit any felony, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree ...." § 790.07(2), Fla....

...session and the use of a firearm during the commission of a felony, here, a kidnapping. We reverse. The defendant was convicted of kidnapping, section 787.01, Florida Statutes (1985), as well as possession of a firearm in the commission of a felony, section 790.07(2), Florida Statutes (1985)....

...This is an appeal by the defendant Bernard McGahee from final judgments of conviction and sentence for (1) attempted manslaughter with a firearm [§§ 782.07, *10 775.087(1), 777.04(1), (4)(c), Fla. Stat. 989)], and (2) unlawful possession of a firearm during the commission of a felony. § 790.07(2), Fla....

...Based on evidence that the defendant fired from the vehicle in which he was riding one rifle shot which struck one passenger in another vehicle, the defendant was convicted of three offenses: aggravated battery (§ 784.045(1)(b), Fla. Stat.); possession of a firearm in the commission of a felony (§ 790.07(2), Fla....

...[3] The offense of aggravated battery, as distinguished from the offense of simple battery, is directed toward the "evil" of misusing a firearm or other deadly weapon when committing a battery and serves to make a felony out of what otherwise would be but a misdemeanor. Likewise the firearm offense proscribed by section 790.07(2), Florida Statutes, is directed against the "evil" of misusing a weapon or firearm during the commission of a felony....

...denied, 484 So.2d 10 (Fla. 1986). [4] In Hall v. State, 517 So.2d 678 (Fla. 1988), it was held that a defendant could not be convicted of both committing armed robbery, under section 812.13(2)(a), Florida Statutes, and the use of a firearm while committing a felony, under section 790.07(2), Florida Statutes. The conviction and punishment for both committing a robbery while carrying a firearm (§ 812.13(2)(a), Fla. Stat.) and the use of a firearm while committing a felony (§ 790.07(2), Fla....

...as misused. Likewise, a defendant should not be convicted of both aggravated battery under section 784.045(1)(b), Florida Statutes, which requires the use of a firearm or other deadly weapon, and the use of a firearm while committing a felony, under section 790.07(2), Florida Statutes....

...of one misuse one time of a firearm. When the firearm is an essential enhancing element of the underlying offense (here aggravated battery under section 784.045(1)(b), Florida Statutes), the defendant should not also be convicted and punished under section 790.07(2), Florida Statutes, for that same misuse of the same firearm....

...to §§ 775.087 and 787.01, Fla. Stat. (1979). Counts II and III charged the appellant with the same offenses perpetrated upon two other individuals. The fourth count charged the appellant with using a firearm during the commission of a felony. See § 790.07(2), Fla....

...priate for the prosecution to comment on this weakness in appellant's alibi defense. As indicated initially, appellant was convicted of both robbery (§ 812.13(1) & (2)(a), Fla. Stat.) and possession of a firearm while engaged in a criminal offense (§ 790.07(2), Fla....

...He contends that he was improperly convicted and sentenced for possession of a firearm where the elements of that offense are included within the elements of first-degree robbery. If this were a matter of first impression we would be inclined to the view that section 790.07(2) defines an offense that is lesser included in the offense defined in section 812.13(1) and (2) where one criminal act underlies both charges....

...oscription. Necessary and preliminary to such an analysis is an examination of the charging document to determine precisely which legislative proscriptions or charges are being compared. The Gibson case involved violations of the following statutes: 790.07 Persons engaged in criminal offense, having weapons....

...on, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084. In its analysis in Gibson the supreme court points out that section 790.07(2) proscribes *800 two separate and distinct offenses "which are: (1) use, display, or attempt or threat to use a firearm while committing a felony and (2) carrying a concealed firearm while committing a felony." 452 So.2d at 554-555 n....

...1. The court then assumes, for various stated reasons, that Gibson is charged with "use or display" rather than the second discrete offense defined by the statute. Since the robbery statute comprehends simply carrying a weapon whereas that aspect of section 790.07(2) involved in Gibson contemplates "use and display" the court then moved to the conclusion that neither offense was a lesser included offense of the other so that multiple convictions and punishments were not prohibited. We have some difficulty with this analysis. The essence of the distinction between the two offenses, as we understand the language of the case, is that the constituent statutory element required to be proved to convict for a violation of section 790.07(2) and not required to be proved to convict for a violation of section 812.13(1) and (2) is "use and display" of the firearm....

...). Thus a choice is necessarily involved when it is determined that "use and display" is not a constituent element of the crime of the armed robbery charged. A similar choice is ordinarily available as between the two discrete offenses proscribed by section 790.07(2)....

...oncealment" was the statutory element involved in the charges against the offender. We draw from all of the foregoing the following conclusion which we limit in immediate application to the two statutes directly involved here. Because a violation of section 790.07(2) may be established by proof that the offender either used and displayed a firearm OR carried a concealed firearm, and because a violation of section 812.13(1) and (2) also has dual aspects (used, displayed, threatened, attempted OR...

...In view of the difficulty we encounter in applying Gibson to the facts of the present case we certify to the Supreme Court of Florida the following question as one of great public importance: IN THE WAKE OF STATE V. GIBSON, 452 So.2d 553 (FLA. 1984), MAY AN OFFENSE PROSCRIBED BY SECTION 790.07(2), FLORIDA STATUTES, EVER BE CONSIDERED A LESSER INCLUDED OFFENSE OF THE PROSCRIPTION OF SECTION 812.13(1) AND (2), FLORIDA STATUTES? The appellant here, as indicated earlier, is similarly charged with violations of both section 812.13(1) and (2) and section 790.07(2). Rather than being charged either with "use or display, etc." or being charged with "carrying a concealed firearm" under section 790.07(2) the information *801 charges both; i.e., that appellant did "display, use, threaten to use, or attempt to use a firearm, or carry a concealed firearm, to-wit: a handgun while committing or attempting to commit a felony, to-wit: robbery, contrary to F.S. 790.07(2) and F.S....

...er, § 777.04, Fla. Stat. (1983); § 782.04, Fla. Stat. (Supp. 1984), shooting or throwing a deadly missile into an occupied building or vehicle, § 790.19, Fla. Stat. (1983), and unlawful possession of a firearm while engaged in a criminal offense, § 790.07, Fla....

...Finally, the record is unclear as to whether Harper should be credited for time served. Therefore, we remand solely for that determination. Accordingly, we AFFIRM in part and REVERSE and REMAND in part. SHIVERS and ZEHMER, JJ., concur. NOTES [1] Section 782.04(1)(a), Florida Statutes (1987). [2] Section 790.07(2), Florida Statutes (1987).

...2, Florida Statutes (1975). *1232 VII. "... did unlawfully and feloniously 15 years Not charged display, use, threaten or attempt to use [a] firearm or carry a concealed firearm, to-wit: PISTOL, while ... committing a felony ..." in contravention of Section 790.07, Florida Statutes (1975)....

...On June 9, 1986, Terrance Love was charged with two counts of armed robbery with a firearm in violation of section 812.13(1) and (2)(a), Florida Statutes (1985), and one count of possession of a firearm while engaged in a criminal offense in violation of section 790.07(2), Florida Statutes (1985)....

...claims constitute fundamental error. Having been convicted of carrying a concealed weapon by a convicted felon in violation of section 790.23, Florida Statutes (2002), and carrying a concealed weapon during the commission of a felony in violation of section 790.07, Florida Statutes (2002), Larry Caldwell complains that it was fundamental error to give instructions to the jury that did not require it to determine whether the knife Caldwell had in his possession was a "concealed weapon," as defined in section 790.001(3)(a), Florida Statutes (2002)....

...Peters, Asst. Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee. HERSEY, Chief Judge. Willie Potts, Jr., was convicted of violation of section 790.07(2), Florida Statutes (1985), which provides: 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....

...chieve the intended end. Therefore, despite the rule that every presumption is to be indulged in favor of the validity of a statute when considering its constitutionality, Griffin v. State, 396 So.2d 152 (Fla. 1981), we conclude that the portions of section 790.07 which prohibit certain activities "while under indictment" are unconstitutional as violative of substantive due process....

...it necessary to reverse the conviction and remand for a new trial. Appellant was charged by indictment with one count of second degree murder in violation of section 782.04, Florida Statutes, and one count of possession of a firearm in violation of section 790.07, Florida Statutes....

...A two-count felony information was filed against him. Count I alleged armed robbery, contrary to section 812.13(2)(a), Florida Statutes (1981). Count II alleged that appellant unlawfully displayed a pistol firearm while committing a felony, contrary to section 790.07(2), Florida Statutes (1981)....

...missible. In Gibson, we held that armed robbery merely required "carrying" a firearm or other deadly weapon, and that therefore there was no bar to a separate sentence and conviction for "use" or "display" of a firearm during commission of a felony, section 790.07(2), Florida Statutes (1977)....

...Blanton had not waived the privilege he had with respect to communications with that expert. See Lovette v. State, 636 So.2d 1304 (Fla.1994). On retrial, Dr. Ward may not, absent a waiver, be called by the State. REVERSED and REMANDED. PLEUS, C.J. and SAWAYA, J., concur. NOTES [1] § 784.045(1)(a)2., Fla. Stat. (2003). [2] § 790.07(2), Fla....

...ccasion on the day of the shooting. The jury found appellant guilty of attempted second-degree murder with the use of a firearm, pursuant to Section 782.04, Florida Statutes, and possession of a firearm during the commission of a felony, pursuant to Section 790.07, Florida Statutes....

...[5] Since the trial judge did not have the benefit of this recent case law at the time of sentencing, we vacate the sentences and remand for resentencing. VACATE SENTENCES; REMAND. COBB, C.J., and UPCHURCH, J., concur. NOTES [1] § 812.13(2)(a), Fla. Stat. (1983). [2] § 790.07(2), Fla....

...Gen., Tampa, for appellee. RYDER, Acting Chief Judge. On February 26, 1980, Ronald Gaskins was charged with grand theft in violation of section 812.014, Florida Statutes (1979), and with using a firearm in the commission of a felony in violation of section 790.07, Florida Statutes (1979)....

...Finally, Pericola alleges that his motion for judgment of acquittal as to the charge of possession of a firearm while under indictment should have been granted as, at the time of the shooting, he had been charged not by indictment but by information. Section 790.07(2), Florida Statutes, provides that: Whoever, while ......

...degree felonies, each punishable "by a term of imprisonment not exceeding 5 years." Section 775.082(3)(d), Florida Statutes. Therefore, although charged under an information, the definition of "indictment" was met so that Pericola's conviction under Section 790.07(2) was proper....

...by use of a deadly weapon, "to wit: a revolver or pistol" in violation of section 784.045(1)(b). In a separate count of the information he was charged with the use of a firearm while committing a felony, "to wit: aggravated battery," in violation of section 790.07(2)....

...ng or the proof adduced at trial. Under a Blockburger analysis, Hurd's two offenses are not separate. The elements of aggravated battery are (1) the commission or attempted commission of a battery, (2) by use of a deadly weapon. The weapons statute, 790.07, is styled "Persons engaged in criminal offenses, having weapons." Subsection (2), the relevant provision, requires proof that the accused (1) committed a felony, (2) using a firearm....

...Appellant was charged with armed robbery, section 812.13(1) and (2)(a), Florida Statutes; attempted first-degree murder, section 782.04(1)(a) and 777.04 (attempt statute); and use of a firearm during the commission of a felony, to wit: attempted first-degree murder, section 790.07(2), Florida Statutes....

...or any human being; or 2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any: ..... d. Robbery, ..... is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082. Section 790.07(2): Whoever, while committing or attempting to commit any felony, 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....

...ing the commission of a felony. The state argues that since the charge in the instant case was possession of a firearm during the commission of an attempted first-degree murder that this charge contains separate elements from robbery with a firearm. Section 790.07(2), Florida Statutes, however, does not specify what felony must be committed to constitute a violation....

...because of the use of a firearm in committing the robbery, the single act involving use of the same firearm in committing the same robbery cannot form the basis of separate conviction and sentence for use of a firearm while committing a felony under section 790.07(2)." [1] Id....

...onvictions constitute double jeopardy. The appellant was convicted of second degree murder, a violation of section 782.04, possession of a firearm by a felon, a violation of section 790.23, and possession of a firearm during a felony, a violation of section 790.07....

...AFFIRMED in part; sentences VACATED; REMANDED for resentencing. GOSHORN, C.J., and DAUKSCH, J., concur. NOTES [1] §§ 893.135(1)(b), (3); 893.135(5), Fla. Stat. (1989). [2] §§ 893.03(2)(a)4; 893.13(1)(f), Fla. Stat. (1989). [3] §§ 893.03(2)(a)4; 893.13(1)(f), Fla. Stat. (1989). [4] § 790.07(2), Fla....

...Gen., West Palm Beach, for appellant. No appearance for appellee. HERSEY, Judge. This is an appeal by the state from an order dismissing Count V of an Information. The charge involved is carrying a concealed firearm during the commission of a felony in violation of Section 790.07, Florida Statutes (1977)....

...ction 790.01(2), Florida Statutes (1977). Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976). Ipso facto, one who carries a firearm in a closed briefcase can be guilty of carrying a concealed weapon during the commission of a felony in violation of Section 790.07, Florida Statutes (1977)....

...Accordingly, there can be no exception to the requirement of a license. Finally, Section 790.25(2)(a) specifically provides that the protections afforded by Section 790.25 "shall not apply to ... any person using weapons or firearms in violation of ..." Section 790.07....

...Ludin, Asst. Atty. Gen., for appellee. Before BARKDULL, HUBBART and JORGENSON, JJ. PER CURIAM. The defendant Carlos Ayrado appeals his conviction and sentence entered below for the offense of unlawful display of a firearm during the commission of a felony [§ 790.07(2), Fla....

...Butterworth, Atty. Gen., and Michele L. Crawford, Asst. Atty. Gen., for appellee. Before SCHWARTZ, C.J., and BASKIN and GERSTEN, JJ. PER CURIAM. We vacate the defendant's conviction of unlawful possession of a firearm while engaged in a criminal offense, § 790.07, Fla....

...due to the defendant's use of a firearm in committing a crime, the single act of using that same firearm in the commission of the same felony cannot form the basis of a separate sentence and conviction for use of a firearm while committing a felony under section 790.07(2)...."); Hall v....

...Public Defender, Bartow, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for appellee. HALL, Judge. Johnny Bell appeals his conviction of possession of a firearm during the commission of a felony pursuant to section 790.07(2), Florida Statutes (1991)....

...We affirm as to ground (1) in which Boutwell alleges that his sentence of 15 years for possession of a firearm exceeded the three year minimum mandatory sentence prescribed in § 775.087(2)(a), Fla. Stat. As the trial court found, Boutwell is simply confused as to the statute under which he was prosecuted. Section 790.07(2), Fla....

...Pinder, 375 So.2d 836 (Fla. 1979); Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980). Since the two offenses for which defendants stand convicted, armed robbery under Section 812.13, Florida Statutes (1977) and possession and display of a firearm under Section 790.07, Florida Statutes (1977), involve the same criminal act as a necessary element of each offense, the defendants' convictions and sentences for possession of a firearm may not stand....

...State, 399 So.2d 424 (Fla. 5th DCA 1981); Lee v. State, 400 So.2d 1238 (Fla. 1st DCA 1981); Monroe v. State, 396 So.2d 241 (Fla. 3d DCA 1981). Cf. Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981) (conviction *1021 of petty larceny inconsistent with finding violation of § 790.07)....

...It is immaterial to this Blockburger analysis that both offenses are defined in one statute. See State v. Getz, 435 So.2d 789, 791 (Fla. 1983). Indeed, the same paragraph of a particular section may proscribe two distinct offenses. See State v. Gibson, 452 So.2d 553, 554-55 n. 1 (Fla. 1984) (section 790.07(2), Florida Statutes (1977), proscribes two distinct offenses: (1) use, display, or attempt or threat to use a firearm while committing a felony and (2) carrying a concealed firearm while committing a felony.) Consequently, we recede f...

...[5] Often the commission of one crime facilitates the accomplishment of another and the best method to commit one crime and to get away with it involves the commission of other, collateral, crimes. There are numerous common examples of this: the use of a weapon or firearm (§ 790.07(1) and (2), Fla....

...h the felony murder charge is based. This is the proper conceptional basis for the recent holdings by the Fourth District Court of Appeal that double jeopardy prohibits the conviction of the offense of use of a firearm in the commission of a felony (§ 790.07(2), Fla....

...on of a felony must be reversed. Under the principles established by the Florida supreme court in Carawan v. State, 515 So.2d 161 (Fla. 1987), double jeopardy prohibits a conviction for possession of a firearm during the commission of a felony under section 790.07(2), Florida Statutes (1987), where possession of a firearm is simultaneously used to aggravate a crime of which the accused is also convicted....

...e Florida Statutes (2000), aggravated assault with a firearm in violation of sections 784.021(1)(a) and 775.087(a) of the Florida Statutes (2000), possession of a firearm in the commission of a felony, to wit: burglary or carjacking, in violation of section 790.07(2) of the Florida Statutes (2000), and petit theft in violation of section 812.014(3)(a) of the Florida Statutes (2000)....

...r armed carjacking, armed burglary, and aggravated assault with a firearm pursuant to section 775.087(2) of the Florida Statutes (2000); and (2) imposing a separate conviction for possession of a firearm during the commission of a felony pursuant to section 790.07(2) of the Florida Statutes (2000)....

...We disagree and hold that Hall still controls. It should be noted that Cleveland's attempted robbery conviction was enhanced from a second-degree felony to a first-degree felony because of the use of the firearm. Upon this enhancement Cleveland was punished for all the elements contained in section 790.07(2) and appropriately sentenced....

...o the defendant's use of a firearm in committing a crime, the single act of using that same firearm in the commission of the same felony cannot form the basis of a separate sentence and conviction for use of a firearm while committing a felony under section 790.07(2) of the Florida Statutes (2000)....

...ed pursuant to section 775.087(2) under Cleveland, the defendant's conviction and sentence for possession of a firearm in the commission of a felony must be vacated. AFFIRMED in part, VACATED in part. COBB and ORFINGER, R. B., JJ., concur. NOTES [1] Section 790.07 of the Florida Statutes (2000) provides, in relevant part: 790.07....

...The defendant pulled a concealed firearm and shot a victim twice in the back, killing him, as a result of which he was convicted of the offense of manslaughter (§ 782.07, Fla. Stat.); the offense of use of a firearm during the commission of a felony (§ 790.07(2), Fla....

...5th DCA 1988), the conviction of use of a firearm during the commission of the manslaughter should be reversed. As to the basic double jeopardy problem involved in convicting for both the necessary underlying felony and the ancillary firearm offense proscribed by section 790.07(2), Florida Stautes, see the dissent in Baker v....

...ossession of a firearm offense. See O'Brien, McKinnon and Hartley. Also, carrying a concealed firearm, a separate offense under section 790.01(2), Florida Statutes, while committing a felony, is, as charged in this case, one of the ways of violating section 790.07(2), Florida Statutes....

...State , which opinion is reported at 517 So.2d 678 (Fla. 1988). In light of these circumstances, we do the following: 1. We withdraw the court's opinion dated April 2, 1986. 2. We reverse the conviction of Larry Sapp for possession of a firearm while engaged in a criminal offense under Section 790.07(2), Florida Statutes (1983) and remand with instructions to dismiss such charge....

...The jury found Diaz guilty of trafficking in cocaine in an amount of twenty-eight grams or more, but less than two hundred grams in violation of section 893.135(1)(b)1, Florida Statutes (1985) [1] and possession of a firearm during the commission of a felony in violation of section 790.07(2), Florida Statutes (1985)....

...Next, we undertake a step-by-step analysis in application of Carawan. First, we find no clear and specific statements of legislative intent whether section 775.087(1)(a), the provision for reclassification of a felony for possession or use of a firearm during the commission of a felony, and section 790.07(2), the criminal offense for displaying, using, threatening or attempting to use a firearm or carrying a concealed firearm while committing a felony, are to be treated as separate offenses subject to separate convictions and sentences....

...of such felony the defendant carries, displays, threatens, or attempts to use any ... firearm... . § 775.087(1), Fla. Stat. (1985). Similarly, the elements of the offense of possession of a firearm during the commission of a felony are set forth in section 790.07: [W]hile committing or attempting to commit any felony ... [the accused] displays, uses, threatens, or attempts to use any firearm... . § 790.07(2), Fla....

...Where there is a reasonable basis for concluding that the legislature did not intend multiple punishments, the rule of lenity contained in section 775.021(1), Florida Statutes (1985) [7] and our common law requires that the *303 court find that multiple punishments are impermissible. Both statutes, sections 775.087(1)(a) and 790.07(2), address the same evil, i.e., possessing a firearm during the commission of a felony....

...In analyzing the two crimes, the supreme court stated: In the instant case, Hall was charged with both committing a robbery while carrying a firearm, under 812.13(1) and (2)(a), and the use and display of a firearm and the carrying of a concealed firearm while committing a felony, under 790.07(2)....

...y shall be known as "trafficking in cocaine." If the quantity involved: 1. Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 calendar years and to pay a fine of $50,000. [2] Section 790.07(2) states: (2) 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....

...ned by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused. [8] Based upon other language in Hall, we believe the supreme court was referring to section 790.07(2)....

...der conviction from a first-degree to a life felony, pursuant to Section 775.087, Florida Statutes. We agree. See Hall v. State, 530 So.2d 1066 (Fla. 1st DCA 1988). Grantham's conviction of use of a firearm in the commission of a felony, contrary to Section 790.07(2), Florida Statutes, is therefore reversed, and the case is remanded with directions to vacate that conviction....

...Section 794.011(3), Florida Statutes (Supp. 1984), provides that "[a] person who commits sexual battery ... and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury is guilty of a life felony." Section 790.07(2), Florida Statutes (1983), makes the use, display, or attempted use of a firearm while committing or attempting to commit a felony, a felony of the second degree....

...e other does not. § 775.021(4), Fla. Stat. Aggravated assault with a firearm, §§ 784.021 and 775.087(2)(a), Fla. Stat. (1987), requires the same elements of proof required in proof of use or display of a firearm during the commission of a felony. § 790.07(2), Fla....

...The juvenile division of the circuit court relinquished jurisdiction upon a finding: "That there is probable cause to believe that Linda Johnson did commit the crime of displaying or attempting to use a weapon while attempting or committing a felony in violation of Florida Statute 790.07, and the crime of First Degree Murder in violation of Florida Statute 782.04." The appellant was tried in the criminal division of the circuit court on the charge of second degree murder....

...Based on this one nuclear indivisible act, the defendant was convicted and sentenced for two offenses: (1) aggravated assault with a firearm (§ 784.021(1)(a), Fla. Stat.) and (2) the use of a firearm in the commission of a felony [to-wit: aggravated assault] (§ 790.07(2), Fla. Stat.) The defendant's conviction for the ancillary [1] offense of use of a firearm in the commission of a felony (§ 790.07(2), Fla....

...The proper authority for the reversal as to the firearms offense conviction in this case is the above constitutional double jeopardy principle as applied in the following 70 cases, all of which reverse convictions for the ancillary weapons or firearms offense (§ 790.07(1) or (2), Fla....

...State, 522 So.2d 1006 (Fla. 4th DCA 1988). Reaching the conclusion that the defendant in this case cannot be convicted of both the underlying felony offense of aggravated assault with a firearm (§ 784.021(1)(a), Fla. Stat.) and the ancillary firearms offense (§ 790.07(2), Fla....

...ly exclusive by necessity, whether that relationship is expressed by statute or not, some have a lesser-greater relationship, some have a causal relationship and some have dependent relationships. Because the weapon and firearm offenses in question (§ 790.07(1) & (2), Fla....

...nse. This relationship caused the problem recognized and addressed, in Redondo v. State, 403 So.2d 954 (Fla. 1981). As was aptly stated in State v. Wheeler, 468 So.2d 978 (Fla. 1985), "a conviction on this charge [a firearms offense conviction under section 790.07(2), Florida Statutes] is parasitically linked to a conviction for the underlying felony." (Emphasis added)....

...ection 784.021(1)(a), Florida Statutes) because of the use of a deadly weapon in the making of the threat. Surely the punishment for the same conduct was not intended to be once again enhanced for the same reason to a second degree felony because of section 790.07(2), Florida Statutes....

...[5] Under the majority's view of this common factual basis for an aggravated assault charge, the State has the charging choice of either charging the defendant with an aggravated assault under section 784.021(1)(a), Florida Statutes, a third degree felony, OR charging the defendant with the firearms offense under section 790.07(2), Florida Statutes, a second degree felony, OR charging and convicting the defendant for both, letting the trial or appellate court vacate one *762 or the other of the two offenses....

...tunity to make an unequal application of the law. It should be held, as is the stated or unstated basis for the reversals of the weapon or firearm offenses involved in the cases cited above, that the weapon and firearm offenses described in sections 790.07(1) and (2), Florida Statutes, and their underlying offenses are in substance always "the same offense" and this is true whether or not the underlying offense also contains an element relating to the use of a weapon or firearm....

...1989) are prohibited; and, under section 775.021(4), Florida Statutes (1988), will continue to be prohibited. As the sentence in this case was based on a guidelines sentence scoresheet scoring both convictions, not only should the conviction for the ancillary firearms offense (§ 790.07(2), Fla. Stat.) be reversed but the sentence, based on guidelines scoring both offenses, should be vacated and the cause should be remanded for resentencing. NOTES [1] § 784.021(1)(a), Fla. Stat. (1987). [2] § 790.07(2), Fla....

...Const.; Florida Rule of Appellate Procedure 9.130(a)(2)(B)(ii). [1] Although "ancillary" to the underlying "primary" felony, under proper legal analysis as to the substantive nature, character and relationship of criminal offenses, the firearms offense (§ 790.07(2)) necessarily incorporates by reference, all of the elements of the underlying "primary" offense to which the ancillary offense is appended; therefore, strange though it may at first appear, technically, the firearms offense always fully...

...5th DCA 1982). State v. Gibson, 452 So.2d 553 (Fla. 1984) held to the contrary but then Gibson was expressly overruled in Hall v. State, 517 So.2d 678 (Fla. 1988). All of this shows a long running vexatious analysis involving the firearms offense under section 790.07(2), Florida Statutes, commencing long before either Carawan v....

...[5] As has often been pointed out in the past, the vexatious legal problem in this case, the 68 cases cited above, hundreds of other cases and cases that will be considered in the future could be easily eliminated if the legislature would merely repeal section 790.07 which attempts to make the use of a weapon or firearm in the commission of a felony a separate criminal offense and make the "use of a weapon or firearm" as an aggravating factor to enhance the punishment for the underlying felony....

...Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee. ZEHMER, Judge. Kenneth Michael Rose appeals his convictions on seven charges, including a charge of possession of a firearm during the commission of a felony pursuant to section 790.07, Florida Statutes (1985)....

...The judgment and sentence for unlawful firearm discharge is affirmed. The convictions for corruption by threat and felony firearm possession are reversed. AFFIRMED in part; REVERSED in part. ORFINGER and COWART, JJ., concur. NOTES [1] § 838.021, Fla. Stat. (1983). [2] § 790.07, Fla....

...tes (1977); (2) attempted first degree murder with a firearm, in violation of Sections 782.04 and 777.04(1), Florida Statutes (1977); and (3) unlawful possession of a firearm while engaged in the commission of the aforesaid felonies, in violation of Section 790.07(2), Florida Statutes (1977)....

...178, 102 L.Ed.2d 147 (1988), the supreme court said: The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime, as it has attempted to do here. We therefore approve and adopt the district court's opinion in its entirety as our own. Section 790.07(2), Florida Statutes (1985), is facially unconstitutional to the extent it purports to penalize a person who is under indictment with greater severity than one who is accused of no crime....

...See State v. Brown, 633 So.2d 1059 , 1060-61 & n. 1 (Fla.1994). The "carrying a concealed weapon while committing a felony” offense contains the elements of cany-ing a concealed weapon while committing or attempting to commit any felony. See § 790.07(2), Fla....

...appellate review. [5] AFFIRMED in part, REVERSED in part, REMANDED. DAUKSCH and W. SHARP, JJ., concur. NOTES [1] § 810.02(2)(a), Fla. Stat. (1995). [2] §§ 782.04, 777.04, Fla. Stat. (1995). [3] §§ 812.13, 775.087, 777.04, Fla. Stat. (1995). [4] § 790.07, Fla....

...State, 492 So.2d at 836. [5] In Hall v. State, 517 So.2d 678 (Fla. 1988), it was held that a conviction and punishment for committing a robbery while carrying a firearm (§ 812.13(2)(a), Fla. Stat.) and the use of a firearm while committing a felony (§ 790.07(2), Fla....

...f body armor while committing certain crimes, rather than merely using that factor to enhance punishment for the underlying offense. This is unfortunate and creates the same substantive double jeopardy identity-of-offense problem created by sections 790.07(1) and (2), Florida Statutes, which attempt to make a separate substantive offense of using a weapon or firearm while committing other crimes....

...Gen., and Bradford L. Thomas, Asst. Atty. Gen., Tallahassee, for appellee. BARFIELD, Judge. Appellant appeals his convictions in two separate cases on twenty-eight charges, including fourteen counts of use of a firearm in the commission of a felony, section 790.07, Florida Statutes....

...rm, permanent disability, or permanent disfigurement; or (b) Uses a deadly weapon. This crime requires proof of a battery, either a misdemeanor or a felony, and severe harm to the victim, or use of a deadly weapon. The possession crime is defined in section 790.07 as: (2) 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, ......

...trial. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Apparently, the Florida Constitution also permits this result. See Gibson. AFFIRMED. COBB, C.J., and ORFINGER, J., concur. NOTES [1] § 784.045(1), Fla. Stat. (1983). [2] § 790.07(2), Fla....

...It is not. We find that defendant was properly convicted of and sentenced for the two crimes of attempted armed robbery with a firearm, sections 812.13(1) and (2)(a) and 777.04, Florida Statutes (1989) and use of a firearm while committing a felony, section 790.07(2), Florida Statutes (1989)....

...Both of the primary statutes in the instant case contain unique elements, while the element of a firearm or weapon is common to both statutes. However, the element that is unique to section 812.13 is that the firearm or weapon usage must relate to a robbery, whereas section 790.07, on the other hand, applies to any felony....

operations are actually being conducted. 29 C.F.R. § 790.7(f). In Bonilla v. Baker Concrete Construction,

...A defendant cannot be separately convicted and sentenced for the crime of unlawful display of a firearm while engaged in a felony and for the underlying felony of attempted murder in the second degree with a firearm. Cleveland v. State, 587 So.2d 1145 (Fla. 1991). Also, in instructing a jury for an offense defined in section 790.07(2), Florida Statutes (1991), that instruction should clearly reflect the underlying crime charged....

...Atty. Gen., Tallahassee, for appellee. *312 MINER, Judge. In this appeal, appellant argues that his convictions for armed robbery under section 812.13(2)(a), Florida Statutes (1987), and for display of a firearm during commission of a felony under section 790.07(2), Florida Statutes (1987), violated his right to be free from double jeopardy....

...COUNT II Nathaniel Williams on the 25th day of July, 1988, in Taylor County, Florida, while committing or attempting to commit a felony, to-wit: Robbery, did display, use, threaten or attempt to use a firearm, or did carry a concealed firearm, to-wit: a pistol, contrary to Florida Statute 790.07....

...hable by imprisonment by a term of years not exceeding life imprisonment as provided in s. 775.082, s. 775.083, or s. 775.084. Appellant was also charged with the use or display of a firearm during commission of a felony, which offense is defined by section 790.07(2), Florida Statutes: (2) 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....

...oes not. Id. at 556-7. Apparently, Gibson found that the substantive elements of robbery in section 812.13(1) did not need to be proved in order to establish the firearm offense. [2] Gibson also found that the display or use of a firearm required by section 790.07(2) was not an element of armed robbery, because the latter offense only required that the offender carry the firearm or other weapon while committing the robbery....

...ents of the charged crimes, as opposed to the language of the charging document." See St. Fabre v. State, 548 So.2d 797, 798 (Fla. 1st DCA 1989) (emphasis in original) (quoting Baker v. State, 456 So.2d 419, 420 (Fla. 1984)). Thus, when one looks at section 790.07(2) and ignores the fact that the information also charges robbery while armed with a firearm, one cannot find an element requiring proof that the offender committed or attempted to commit a robbery. [3] The court determined that section 790.07(2) proscribed two discrete offenses: (1) the display, use, threat or attempt to use a firearm during commission of a felony, and (2) carrying a concealed firearm during commission of a felony. Since this latter offense was not involved in Gibson, the court did not include it in the Blockburger test. We note that the instant case also involves only the first of the offenses that are proscribed by section 790.07(2)....

...sofar as relevant here, of aggravated assault with a firearm, (count I), § 784.021(l)(a), Fla. Stat. (2009), and unlawful possession of [the same] firearm while engaged in the commission of a felony, to wit: [the same] aggravated assault (count V), § 790.07(2), Fla....

...Count I of the information in question charged Carlos Betancourt with abuse, neglect, or torture of an aged person, contrary to section 415.111(3), Florida Statutes (1991). Count II alleged the unlawful possession of a firearm while engaged in a criminal offense, contrary to section 790.07, Florida Statutes (1991)....

...carrying a concealed firearm in violation of section 790.01; eight years on Count III, possession of a firearm by a convicted felon in violation of section 790.-23; and eight years on Count IV, possession of a firearm during a felony in violation of section 790.07....

...On appeal from the Circuit Court for Escambia County. John L. Miller, Judge. July 9, 2018 WETHERELL, J. Trevor Amos Brown appeals his conviction for use of a firearm during the commission of a felony in violation of section 790.07(2), Florida Statutes (2015)....

...We affirm the denial order in all respects except one. Baxter's seventeen-year sentence on the charge of possession of a firearm while engaged in a criminal offense [1] appears to exceed the maximum penalty allowed by law for this charge. The offense is a second degree felony. See § 790.07(2), Fla....

...ich does not appear to be the case on this limited record. See, e.g., Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982). Accordingly, we reverse that portion of the order on appeal addressing Baxter's *880 seventeen-year sentence for a violation of section 790.07(2), Florida Statutes, and remand with directions that the trial court either resentence Baxter on this charge or attach portions of the record demonstrating how the charge was legally enhanced or reclassified to a first degree felony. In all other respects, the trial court's order is affirmed. REVERSED IN PART; AFFIRMED IN PART. GRIFFIN and ORFINGER, JJ., concur. NOTES [1] See § 790.07(2), Fla....

...Therefore, because Richardson's sentence was not affected by the amendment, the conviction and sentence is affirmed. Baxter, 616 So.2d 47; Johnson, 616 So.2d 1. HARRIS, C.J., and PETERSON, J., concur. NOTES [1] § 782.04(2), Fla. Stat. (Supp. 1989). [2] § 790.07(2), Fla....

...e of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under section 790.07(2)....

...Neil , the trial court did not err in failing to inquire into the state's motives for excluding Mr. Denson and Mrs. Roberts and correctly denied Smith's motion for mistrial. Next, Smith contends that he was impermissibly convicted of the use of a firearm in the commission of an aggravated assault in violation of § 790.07(2), Florida Statutes (1987), [1] and aggravated assault with a deadly weapon without intent to kill, in violation of § 784.021(1)(a), Florida Statutes....

...We find no ambiguity in the statutory language used by the legislature, and discern no legislative intent to impose two separate punishments for the single use of the firearm in committing the single aggravated assault. Rather, it is patently clear that section 790.07, read in its entirety, simply provides that the penalty for displaying or using any weapon, including a firearm, in the commission of a felony shall be enhanced over the penalty provided for the commission of that felony without the described weapon or firearm....

...of this conviction will not affect the sentencing guideline range for the convictions of armed robbery and use of a firearm during commission of a felony. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. ERVIN and WENTWORTH, JJ., concur. NOTES [1] Section 790.07, Florida Statutes (1987), provides in part: (1) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any weapon or electric weapon or device or carries a concealed weapon is guilty of a felony of the third degree, ......

...ony. See § 777.04(4)(d), Fla.Stat. (1995). The other issues raised by the defendant being without merit, we affirm. AFFIRMED. PETERSON, C.J., and THOMPSON, J., concur. NOTES [1] §§ 784.07(2)C, 784.021(1)(a), and 775.0823(1), Fla.Stat. (1995). [2] § 790.07, Fla.Stat....

...e of a firearm during the commission of a felony be vacated. RAWLS, Acting C.J., and McCORD, J., concur. SMITH, J., dissents. SMITH, Judge (dissenting): On further reflection and rehearing, I consider that count two, charging in the generic terms of § 790.07(2), F.S., 1973, that Robinson and others, on June 12, 1974, in Hamilton County, "did then and there unlawfully while committing a felony use a certain firearm, to-wit: a pistol," is insufficient to inform the defendant of the nature and cau...

...f a firearm in commission of a felony. The defendant was charged by a two-count information with robbery with a firearm, in violation of Section 812.13, Florida Statutes (1977), and with use of a firearm in the commission of a felony, a violation of Section 790.07, Florida Statutes (1977)....

...ifth Amendment rights. We affirm. Appellant was charged by indictment on September 30, 1986 with first-degree mur *1093 der, in violation of section 782.04, Florida Statutes, and possession of a firearm during commission of a felony, in violation of section 790.07(2), Florida Statutes....

...committing battery: (a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or (b) Uses a deadly weapon. The use or display of a firearm during the commission of a felony is set forth in Fla. Stat. § 790.07 (2): 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....

...while at said time and place the defendant was committing a felony, to-wit: ATTEMPTED MURDER IN THE FIRST DEGREE, as provided by 782.04(1) and 777.04(1) Florida Statutes, the possession and display of said firearm as aforesaid, being in violation of 790.07 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida....

...d cocaine in the zippered pockets of the jacket. The search, originally conducted as a routine inventory, then turned into a criminal investigation, and Reeves was charged with possession of the illegal substances. He was also charged with violating section 790.07, Florida Statutes (1989), in that he “did unlawfully display, use, threaten, or attempt to use a firearm, or carried a concealed firearm, to-wit: a handgun, while committing or attempting to commit a felony....” Reeves moved to suppress evidence of the drugs and firearm....

LILES, WOODIE A., Associate Judge (Retired). Cherry was charged by information with attempted first degree murder, together with displaying or using a firearm in violation of Section 790.07(2), Florida Statutes (1977)....

opinion. . § 784.021(l)(a), Fla.Stat. (1985). . § 790.07(2), Fla.Stat. (1985). . § 790.23, Fla.Stat.

section 790.01 (carrying concealed weapons), section 790.07 (persons engaged in criminal offense with a

the commission of the felonies (count IV), section 790.07(2), Florida Statutes (1981), resulting in “legally

sentence imposed is within the limits of the statute; § 790.07(2) F.S.; § 775.082 F.S. Hargrove had been tried

...A police officer is not required to determine conclusively that a crime has occurred prior to detaining an individual. State v. Wimberly, 988 So.2d 116, 119-20 (Fla. 5th DCA 2008). We find no error in the trial court’s denial of Ward’s motion to suppress. AFFIRMED. TORPY and COHEN, JJ., concur. . § 790.07(2), Fla....

...Smith, 547 So.2d 613, 616 (Fla.1989) (emphasis in original). The first-degree murder statute, section 782.04(l)(a), Florida Statutes (1987), under which the defendant was convicted and sentenced, contains no elements in common with the firearm statute, section 790.07, Florida Statutes (1987), under which she was convicted and for which sentence was suspended....

concur. . § 782.04(2), Fla.Stat. (1991). . § 790.07(2), Fla.Stat. (1991). .§ 790.23(1), Fla.Stat

” While the instruction purports to cover section 790.07(4), Florida Statutes (2017) (Persons engaged

...Remand however is not necessary because the trial court sentenced Cox within the recommended guidelines range and reversal of the firearm conviction does not change the recommended guidelines range. AFFIRMED in part; VACATED in part. DAUKSCH and GOSHORN, JJ., concur. . §§ 777.04, 782.04(l)(a), Fla.Stat. (1987). . § 790.07, Fla.Stat....

firearm during the commission of a felony under Section 790.07(2), Florida Statutes (1987), where, as here

...State, 547 So.2d 138 (Fla. 3d DCA 1988); Allen v. State, 474 So.2d 261 (Fla. 4th DCA 1985); Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Section 7, Chapter 88-131, Laws of Florida; Section 782.04, Florida Statutes (1987); Section 790.07(2), Florida Statutes (1987); Section 790.19, Florida Statutes (1987); Section 924.33, Florida Statutes (1987).

...Cleveland v. State, 587 So.2d 1145 (Fla.1991). Cleveland is dispositive. In Cleveland , the defendant was convicted of attempted armed robbery with a firearm (Sections 812.13(1) and (2)(a) and 777.04) and use of a firearm while committing a felony (Section 790.07(2))....

...Three of those crimes were separate armed robberies, as to each of which his sentence was enhanced pursuant to subsection (2)(a) of section 812.13, Florida Statutes (Supp.1992), because of his use of a firearm in committing the robberies. In addition, the trial court imposed the further enhancement provided for in section 790.07(2), Florida Statutes (1991), for possession of a firearm during the commission of a felony....

...Johnson, 483 So.2d 420 (Fla.1986), we reverse and vacate the defendant’s conviction, under Count VII of case number G88-1597-CFA in the criminal division of the Circuit Court for Seminole County, Florida, of the offense of use of a firearm in the commission of a felony, section 790.07(2), Florida Statutes....

...of due diligence, or (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively. . § 812.13(2)(a), Fla. Stat. (1985). . § 784.021(l)(a), Fla. Stat. (1985). . § 790.07, Fla....

...Thus, Murphy does not control the outcome of appellant’s case. Although we are persuaded by the Second District’s double jeopardy analysis in Mizner, we find additional support for our decision in the present case from case law analyzing the double jeopardy effect of section 790.07, Florida Statutes, which prohibits the display, use, or possession of a firearm during the commission of “any felony.” See Cleveland v....

...See: Washington v. State, 51 Fla. 137 , 40 So. 765 ; Reis v. State, Fla.App.1971, 248 So.2d 666 ; Carter v. State, Fla.App.1976, 330 So.2d 508 (opinion filed April 23, 1976); Dorfman v. State, Fla.App. 1976, 333 So.2d 481 (opinion filed this date); § 790.07(2), Fla.Stat.; § 790.-10, Fla.Stat.

commission of a felony (conduct criminalized by section 790.07(2), Florida Statutes), was used to enhance

defendant’s conviction for display of a firearm, see Section 790.07(2), Florida Statutes (1977), claims that this

...The appellant was convicted and sentenced on the following charges: Count I: Sexual battery with a firearm, in violation of Section 794.011(2), Florida Statutes (1989) — sentenced to 25 years; Count II: Unlawful possession of a firearm while engaged in a criminal offense, in violation of Section 790.07, Florida Statutes (1989)— sentenced to 5 years; and Count III: Aggravated assault, in violation of Section 784.021(l)(a), Florida Statutes (1989) — sentenced to 15 years....

weapon while engaged in a criminal offense, see § 790.07(1), Fla.Stat. (1991), must be vacated on authority

PER CURIAM. The state concedes that the trial court erred in sentencing the defendant to a twenty-year concurrent term for his conviction of possession of a firearm while engaged in a criminal offense, a second degree felony, see § 790.07(2), Fla.Stat....

BOARDMAN, Judge. Appellant was convicted of two separate offenses: (1) assault with intent to commit robbery, Section 784.06, Florida Statutes, F.S.A., and, (2) using a firearm in the commission of a felony, Section 790.07(2), Florida Statutes, F.S.A....

PER CURIAM. The defendant’s conviction for unlawful possession of a firearm while attempting to commit a felony, section 790.07, Florida Statutes (1977), is affirmed....

...e and that section 790.08(3) only permits the return of such weapons if the defendant is acquitted or the charges are dismissed. Sections 790.08(2) & (3) provide in relevant part: (2) If the person arrested as aforesaid is convicted of violating s. 790.07, or of a similar offense under any municipal ordinance, or any other offense involving the use or attempted use of such weapons, electric weapons or devices, or arms, such ......

...This rule of construction is applicable to statutes imposing a forfeiture of property. See McCaskill v. Union Naval Stores Co., 59 Fla. 571 , 52 So. 961 , 962 (1910). Section 790.08(2) requires forfeiture if an arrestee is “convicted of violating s. 790.07, or of a similar offense under any municipal ordinance, or any other offense involving the use or attempted use of such weapons.” Section 790.07, Florida Statutes (1995), concerns the use of weapons or firearms while under indictment or during the commission of a felony, a set of circumstances inapplicable to this case....

activities referred to in § 254(a). 29 C.F.R. § 790.7(g). In order for such an activity to be compensable

...e of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under section 790.07(2).”)....

...s for a separate conviction and sentence for use of a firearm while committing a felony. Cleveland v. State, 587 So.2d 1145, 1146 (Fla.1991); Ses sions v. State, 597 So.2d 832 (Fla. 3d DCA 1992); Davis v. State, 590 So.2d 496 (Fla. 3d DCA 1991). See § 790.07(2), Fla.Stat....

...Through a negotiated plea, the defendant was adjudicated on two counts: (1) commission of a robbery with a firearm, pursuant to Section 812.13, Florida Statutes (1977); and (2) unlawful possession of a firearm while engaged in the commission of a felony, pursuant to Section 790.07, Florida Statutes (1977)....

...(1975). A separate count of the information charged that at the same time and place, petitioner and his codefendants “did unlawfully and feloniously display certain firearms” while committing robbery. Thus the latter count alleged a violation of section 790.07(2), Florida Statutes (1975)....

...On appeal, defendant-appellant alleges that his conviction and sentence for unlawful possession of a weapon while engaged in a criminal offense are void as being for conduct not defined as a crime. We find this contention clearly erroneous as F.S. § 790.07 F.S.A....

DANIEL S. PEARSON, Judge. Reynolds was convicted of aggravated assault with a firearm in violation of Section 784.021, Florida Statutes (1981), and display and use of a firearm in the commission of a felony (the aggravated assault) in violation of Section 790.07, Florida Statutes (1981)....

...An aggravated assault is statutorily defined, in part, as an assault “with a deadly weapon without intent to kill.” § 784.-021(l)(a), Fla.Stat. (1981). The pertinent firearm statute makes it unlawful for one to display, use, threaten or attempt to use any firearm while committing or attempting to commit any felony. See § 790.07(2), Fla.Stat....

...during a robbery were reversed. 3 The six counts were charged in four different informations. Appellant pled guilty to the following six counts: burglary (Fla. Stat. § 810.02), use of a firearm in the commission of a felony (Fla. Stat. § 790.07(2)), aggravated assault (Fla....

...§ 2254; accord Maleng v. Cook, 490 3 The six counts were charged in four different informations. Appellant pled guilty to the following six counts: burglary (Fla.Stat. § 810.02), use of a firearm in the commission of a felony (Fla.Stat. § 790.07(2)), aggravated assault (Fla.Stat....

...e furthering of some unlawful activity, here said to be a narcotics transaction. While Section 790.-25(2)(b)l expressly provides that the protections of Section 790.25 do not apply, inter alia, to persons who carry concealed firearms in violation of Section 790.07(2), it seems clear that in order for the State to prevail in its contention that persons carrying concealed firearms at their homes lose the protection of Section 790.25(3)(n) by virtue of having violated Section 790.07(2), such persons must first have been found guilty of carrying the concealed firearm “while committing or attempting to commit any felony o'r while under indictment.” See § 790.07(2), Fla.Stat. (1983). In the present cases, the defendants were never charged under Section 790.07, much less shown to be guilty of an offense thereunder....

commission of the three robberies, contrary to Section 790.07(2), Florida Statutes (1975), which provides

775.083, and s. 775.-084. (emphasis supplied) § 790.07(2), Fla.Stat. (1985). The Redondo decision has

McDonald, justice. In a two-count information the state charged Fuller with second-degree felony murder under section 782.04, Florida Statutes (1979), and unlawful display of a firearm during commission of a felony under section 790.07, Florida Statutes (1979)....

...On appeal the district court vacated Fuller’s sentence for display of a firearm, finding that crime to be a lesser included offense of second-degree felony murder. Fuller v. State, 414 So.2d 264, 266 (Fla. 3d DCA 1982). We recently held that a firearms charge pursuant to section 790.07 is not a lesser included offense of first-degree murder....

using a firearm in the commission of a felony, Fla.Stat. 790.07 (1971), F.S.A., but the additional sentence

...As the State properly concedes, the trial court erred by adjudicating the defendant, Timothy Leroy Cooper, guilty of both robbery with a firearm, section 812.13(2)(b), Florida Statutes (1995), and unlawful possession of a firearm while engaged in a criminal offense, section 790.07(2), Florida Statutes (1995)....

...e of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under section 790.07(2).”)....

...Accordingly, we strike Hubbard’s conviction and sentence for using a firearm while committing a felony, but otherwise affirm his remaining convictions and sentences. AFFIRMED as Modified. DAUKSCH, GOSHORN and PETERSON, JJ., concur. . § 782.04, Florida Statutes (1989): . § 812.13(1), (2)(a), Florida Statutes (1989). . § 790.07(2), Florida Statutes (1989)....

...recommended sentencing guideline range. Shull v. Dugger, 515 So.2d 748 (Fla.1987). REVERSED AND REMANDED. ORFINGER and COWART, JJ., concur. . § 810.02(1), Fla.Stat. (1987). . § 812.014(2), Fla.Stat. (1987). . § 812.014(2)(d), Fla.Stat. (1987). . § 790.07, Fla.Stat....

...State, Fla.App.1972, 263 So.2d 849 . Appellant’s third point challenges the sufficiency of the evidence to support appellant’s conviction upon a charge of the unlawful possession of a firearm while engaged in a criminal offense. See Fla. Stat. § 790.07 , F.S.A....

...(1989)], (2) armed false imprisonment [§§ 787.02(2), 775.-087(l)(c), Fla.Stat. (1989)], (3) aggravated assault [§ 784.021, Fla.Stat. (1989) ], (4) discharge of a firearm in public [§ 790.15(1), Fla.Stat. (1989)], and (5) possession of a firearm during the commission of a felony [§ 790.07(2), Fla.Stat....

...use of a firearm in committing the trespass, the single act involving use of the same firearm in the commission of the same trespass cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under Section 790.07(2), Florida Statutes (1989)....

...It is clear that where, as here, a defendant is charged with and found guilty of (1) armed robbery as proscribed by Section 812.13(1), (2)(a), Florida Statutes (1987), and (2) unlawful display of a firearm while committing a felony, to wit: the above armed robbery, as proscribed by Section 790.07(2), Florida Statutes (1987), it is reversible error to enter a separate conviction and sentence on the above firearm display charge....

1983), we hold that the constituent elements of Section 790.07(1), (2), Florida Statutes (1981), as charged

...e criminal event. Johnson was arrested on September 30, 1984, for the felony offenses of shooting into an occupied dwelling, an act violative of section 790.19, Florida Statutes, and using a firearm while committing a felony, conduct condemned under section 790.07(1), Florida Statutes....

...The State asserts that the deputies had probable cause to arrest appellant as a principal to the drug transaction, section 777.011, Florida Statutes (1987), and possession of drug paraphernalia, section 893.147(l)(a), Florida Statutes (1987), and after the search of the glove compartment, carrying a concealed weapon, section 790.07(2), Florida Statutes (1987)....

...Baca’s contention, however, that he could not validly be sentenced for both robbery with a firearm and possession of a firearm during a felony does have merit. Hall v. State, 517 So.2d 678 (Fla.1988). Accordingly, the concurrent fifteen year sentence imposed on Count IV, violation of section 790.07(2), Florida Statutes (1987), is vacated....

every officer who makes a lawful arrest under section 790.07, Florida Statutes, or under any other law or

...Hence, the gun in this case does not qualify as a “burglary tool.” Section 790.08(3) requires the return of a weapon to a defendant if “charges” against him or her are dismissed. However, the “charges” referred to in the statute include only a “[violation of] s. 790.07, or of a similar offense under any municipal ordinance, or any other offense involving the use or attempted use of such weapons ...” § 790.08(2), Fla. Stat. (1997). Appellant was never charged with a violation of section 790.07....

...ex post facto restrictions of both the United States and the Florida Constitutions. 6 Accordingly, we vacate the sentences and remand for resentencing. VACATE SENTENCES AND REMAND. ORFINGER and COWART, JJ., concur. . § 784.045, Fla.Stat. (1985). . § 790.07, Fla.Stat....

conviction for possession of a firearm under section 790.07(2), Florida Statutes (1982), including informing

PER CURIAM. We vacate the defendant’s conviction of unlawful possession of a firearm while engaged in a criminal offense, § 790.07, Fla....

...firearm in the commission of a felony. AFFIRMED in part; REVERSED in part; and REMANDED. COBB, J., concurs in result; concurs with certification of question to supreme court. COWART, J., dissents with opinion. . § 784.021(l)(a), Fla.Stat. (1987). . § 790.07(2), Fla.Stat....

...The order denying the motion was dispositive of only two of the crimes to which Mr. James pleaded nolo contendere: possession of a firearm by a convicted felon, section 790.23(1), Florida Statutes (2003) (count nine), and possession of a firearm during the commission of a felony, section 790.07(2) (count thirteen)....

...State, 626 So.2d 254 (Fla. 5th DCA 1993). However, we deem these authorities inapposite, as in each case, the separate firearm charge involved using, or carrying, a weapon or firearm while committing or attempting to commit the separate felony under section 790.07, Florida Statutes....

...elony or while under indictment, displays, uses, threatens, or attempts to use any weapon ... or carries a concealed weapon is guilty of a felony of the third degree,.... (emphasis added) Clearly a defendant could not be validly convicted under both section 790.07 and 790.01. Walton v. State, 360 So.2d 50 (Fla. 2d DCA 1978). Nor may a defendant be convicted under 790.07 for an offense for which the felony has been, as *464 here, already enhanced by use of the weapon or firearm....

PER CURIAM. James Anthony Pridgen has appealed his conviction of two counts of displaying a firearm during the commission of a felony, contrary to section 790.07(2), Florida Statutes (1989)....

...(1989). The charge against Pridgen was so enhanced. Pridgen argues on appeal that, when charges are enhanced based on the use of a firearm, use of the same firearm in committing the same offense cannot form the basis of a separate conviction under section 790.07(2), Florida Statutes (1989). 2 See Hall v. State, 517 So.2d 678 (Fla.1988); Cleveland v. State, 587 So.2d 1145 (Fla. 1991). The state concedes that Pridgen was improperly convicted under section 790.07(2), and asks that the case be remanded for vacation of those convictions and their respective sentences. Based on the foregoing authorities, and on the state’s concession of error, we reverse and remand for vacation only of the convictions and sentences under section 790.07(2)....

...JOANOS, C.J., and ERVIN and WIGGINTON, JJ., concur. . Aside from the two convictions herein appealed, Pridgen was convicted of resisting arrest without violence, armed robbery, battery on a law enforcement officer, and aggravated assault. Pridgen appeals only his convictions under section 790.07(2), and we do not intend by this opinion to disturb the remaining convictions....

PER CURIAM. We find the conviction for possession of a firearm during the commission of a felony, § 790.07, Florida Statutes (1985), to be erroneous because the elements of that crime duplicate certain elements of the crime of second-degree murder with a firearm, § 782.04, Florida Statutes (1985), of which the defendant was also convicted....

...first-degree murder [§ 782.04(l)(a)(l), Fla.Stat. (1991)], (2) conspiracy to commit first-degree murder [§ 777.04(3), 782.04(l)(a)(l), Fla.Stat. (1991) ], and (3) display of a firearm during the commission of a felony, to wit: first-degree murder [§ 790.07(2), Fla.Stat....

...Appellant appeals from a conviction and sentence for aggravated assault with a firearm, § 784.021, Fla.Stat. (1985), 1 as reduced from the charged offense of second degree murder. He contends that the jury’s finding him not guilty of unlawful possession of a firearm during the commission of a felony, § 790.07(2), Fla.Stat....

PER CURIAM. Defendant Myron Morales appeals his convictions for shooting into an occupied vehicle, § 790.19, Fla.Stat. (1987), and unlawful possession of a firearm while engaged in a criminal offense, § 790.07, Fla....