Florida District Courts of Appeal, 1991

Garcia v. State

Garcia v. State
Florida District Courts of Appeal · Decided December 24, 1991 · Cope, Gersten, Hubbart
591 So. 2d 307; 1991 Fla. App. LEXIS 13440; 1991 WL 272756 (Southern Reporter, Second Series)

Garcia v. State

Opinion of the Court

PER CURIAM.

Dwayne Garcia pled nolo contendere to possession of a firearm by a convicted felon, reserving the right to appeal the trial court’s denial of his motion to dismiss the charge. Defendant argues that prosecution of that charge was precluded by the doctrine of collateral estoppel, by reason of defendant’s acquittal on the severed charges of attempted first degree murder with a firearm and possession of a firearm during a criminal offense. See Gragg v. State, 429 So.2d 1204 (Fla.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983). As we view this record, collateral estoppel did not preclude prosecution of defendant on the current charge. We are unable to say that the issue of possession was decided by the jury in the prior case, see 429 So.2d at 1206, as the earlier acquittal was consistent with the theory that *308defendant possessed a firearm but did not shoot the victim.

Affirmed.

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