Florida District Courts of Appeal, 1981

Marsden v. State

Marsden v. State
Florida District Courts of Appeal · Decided June 30, 1981 · Ferguson, Hendry, Nesbitt
400 So. 2d 194; 1981 Fla. App. LEXIS 20396 (Southern Reporter, Second Series)

Marsden v. State

Opinion of the Court

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. Although the elements of this crime are the same as the elements constituting the crime of attempted robbery with a firearm, sections 812.13(1), (2)(a), and 777.04(1), Florida Statutes (1977), for which defendant was also convicted, the error was not preserved for appellate review since defendant failed to attack the information below through a motion to elect and/or dismiss. However, the sentence imposed upon the less serious of the two crimes — the firearm conviction— is reversed on double jeopardy grounds as a fundamental error which may be raised for the first time on appeal. Williams v. State, 397 So.2d 438 (Fla. 3d DCA 1981) (1981).

Denial of the defendant’s motion to suppress is affirmed on the authority of State v. Webb, 398 So.2d 820 (Fla. 1981).

Affirmed in part; reversed in part.

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