Perri v. State
154 So. 3d 1204
Fla. Dist. Ct. App.2015Background
- Sean Perri fled from officers after a tip he possessed drugs and a firearm; police found a firearm and ammunition.
- He was charged with multiple offenses; two counts—possession of a firearm by a convicted felon and possession of ammunition by a convicted felon—were severed.
- After a jury convicted Perri of the other counts, he entered an open plea to the two felon-in-possession counts and was sentenced as a habitual felony offender to concurrent thirty-year terms with a three-year mandatory minimum on the firearm count.
- Appellate counsel raised only one issue on direct appeal (trial court's refusal to dismiss three other counts); counsel did not raise a double jeopardy challenge to the two felon-possession convictions.
- Perri filed a postconviction petition under Fla. R. App. P. 9.141(d) alleging ineffective assistance of appellate counsel on four grounds; the State conceded ground three (failure to raise double jeopardy), and the court granted relief as to that ground only.
Issues
| Issue | Perri's Argument | State's Argument | Held |
|---|---|---|---|
| Whether dual convictions for possession of a firearm and possession of ammunition by a convicted felon violate double jeopardy | Dual convictions constitute multiple punishments for the same statutory "any" possession proscription and thus violate double jeopardy | Issue was not preserved at trial but is fundamental error not waived by an open plea | Appellate counsel was ineffective for failing to raise the claim; conviction and sentence for ammunition possession must be vacated |
| Whether appellate counsel was ineffective generally | Counsel failed to raise meritorious double jeopardy claim on direct appeal | State conceded this specific ineffectiveness claim | Petition granted in part (as to double jeopardy) |
| Appropriate remedy for double jeopardy violation | Vacatur of the lesser conviction | State agreed vacatur was required | Court directed trial court to vacate conviction and sentence for ammunition possession |
| Whether Perri may withdraw his plea as relief for the error | Perri requested withdrawal of plea (asserted) | Court noted collateral remedy path instead of withdrawal | Court remanded to vacate ammunition conviction; advised Perri to seek further relief via Fla. R. Crim. P. 3.850 if desired |
Key Cases Cited
- Boyd v. State, 17 So. 3d 812 (Fla. 4th DCA 2009) (holding that the statutory phrasing precludes multiple convictions for possession of listed items)
- Bell v. State, 122 So. 3d 958 (Fla. 2d DCA 2013) (dual convictions for separate possession locations violated double jeopardy)
- Strain v. State, 77 So. 3d 796 (Fla. 4th DCA 2011) (same double jeopardy principle applied to felon-in-possession convictions)
- Novaton v. State, 634 So. 2d 607 (Fla. 1994) (plea does not bar a subsequent double jeopardy claim when error is apparent from the record and not waived)
- Olivard v. State, 831 So. 2d 823 (Fla. 4th DCA 2002) (proper remedy for double jeopardy through dual convictions is vacatur of the lesser offense)
- Hill v. State, 711 So. 2d 1221 (Fla. 1st DCA 1998) (precedent on the statutory construction leading to double jeopardy concerns)
- Hunt v. State, 769 So. 2d 1109 (Fla. 2d DCA 2000) (relying on Novaton regarding plea and double jeopardy claims)