Luis Luciano v. State
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2008
LUIS ALFREDO LUCIANO,
Appellant,
v.
Case No. 5D07-601
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed June 13, 2008
Appeal from the Circuit Court
for Orange County,
Jeffrey M. Fleming, Judge.
James S. Purdy, Public Defender, and
Marvin F. Clegg, Assistant Public
Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Brigid E. Collins,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Appellant raises three points on appeal, only two of which merit discussion.
Appellant challenges his convictions for shooting from a vehicle 1 and shooting into an
occupied vehicle 2 on double jeopardy grounds. The State concedes that our panel
1
§ 790.15(2), Fla. Stat. (2006).
2
§ 790.19, Fla. Stat. (2006).
decision in Lopez-Vazquez v. State, 931 So. 2d 231 (Fla. 5th DCA 2006), compels
reversal, although the State urges that we recede from this precedent. The State also
concedes Appellant’s second point -- the lack of evidentiary support for the award of
investigative costs.
Accordingly, we remand this cause with instructions that the trial court vacate
one of the shooting convictions and the award of investigative costs. Upon remand, the
trial court may re-impose such costs upon appropriate motion and proof.
We certify conflict with Valdes v. State, 970 So. 2d 414 (Fla. 3d DCA 2007) , rev.
granted, 975 So. 2d 430 (Fla. 2008).
AFFIRMED IN PART AND REMANDED; CONFLICT CERTIFIED.
LAWSON and COHEN, JJ., concur.
TORPY, J., concurs and concurs specially with opinion.
2
5D07-601
TORPY, J., concurring and concurring specially.
I concur on the double jeopardy issue only because we are bound by the panel
decision in Lopez-Vazquez v. State, 931 So. 2d 231 (Fla. 5th DCA 2006). If we were
not so bound, I would affirm. I agree with the decision of our sister court in Valdes v.
State, 970 So. 2d 414 (Fla. 3d DCA 2007), which certified conflict with Lopez-Vazquez
and is currently on review. In my view these are separate offenses for which separate
punishment is authorized. Although I admit that the decisional law on this point is
confusing and difficult to reconcile, I think the statutory exception on which the panel
relied in Lopez-Vazquez is not applicable here. It prohibits separate punishments when
the two offenses are “degrees of the same offense as provided by statute.”
§
775.021(4)(b)(2), Fla. Stat. (2007) (emphasis supplied). Here, we are dealing with two
separate offenses contained within two separate statutes. The fact that they are both
part of the same chapter is of no consequence in my view. Section 790.15(2) punishes
the discharge of a firearm from a vehicle within 1000 feet of any person. Section 790.19
relates to shooting or throwing a deadly missile into a building or conveyance. Neither
is a statutory degree variant of the other. They are entirely different crimes.
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