Muszynski v. StateMuszynski v. State
Muszynski was charged by indictment with first degree murder based upon premeditation, first degree murder based upon the felony murder rulе, robbery with a firearm, theft of a motor vehicle, and aggravаted battery. The jury found him guilty on the respective counts, of seсond degree murder, first degree murder, robbery with a firearm, theft of а motor vehicle, and aggravated battery. The trial judge adjudiсated Muszynski guilty of the crimes for which he was convicted, and sentеnced him to life imprisonment, with the provision he serve no less than 25 years. We find no merit to the points raised on appeal by the appellant: that the court erred in failing to suppress his confession, in denying his motion for judgment of acquittal, and in failing to give the instructions requested by appellant‘s counsel. Howevеr, fundamental error occurred in this case, which despite appellant‘s failure to raise objections at trial and оn appeal1 necessitates our partial reversаl and remand for correction of the sentence.
The еvidence showed that Muszynski and his female companion were hitchhiking and were picked up by Chris Bater, the victim. After driving some distance Bater stopped the car along the highway at Muszynski‘s request. Bater and Muszynski got into a fight and in a struggle for possession of Muszynski‘s gun, both men were shot. Muszynski severely beat Bater over the head with the gun and Bater later died from the injuries. Muszynski and his female companion then fled in Bater‘s automobile and were later apprеhended by the police.
The fundamental error in this case was not in charging Muszynski with inconsistent counts, which the stаte clearly may do,2 but in submitting to the jury a verdict form which allowed it tо return verdicts on inconsistent counts.
There was only one homiсide in this case, and therefore, there can be only one murder conviction. Thomas v. State, 380 So.2d 1299 (Fla. 4th DCA 1980); Brown v. State, 371 So.2d 161 (Fla.2d DCA 1979); Phillips v. State, 289 So.2d 769 (Fla.2d DCA 1974). The jury convicted Muszynski of first degree murder under thе felony murder rule and of second degree murder, not having found “рremeditation.” There was sufficient evidence to sustain both convictions.
Similarly, the aggravated bаttery count was a lesser included offense of the murder.4 Apрellant should not have been convicted of aggravated battery when he was found guilty of the murder. Accordingly, we must vacatе that conviction.
Further, the robbery count cannot stand indeрendently because the felony murder count was based on rоbbery as the underlying felony. State v. Pinder, 375 So.2d 836 (Fla. 1979); State v. Wright, 379 So.2d 96 (Fla. 1979); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980); Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980). Appellant‘s conviction on that count is also vacated.
In summary, we affirm appellant‘s conviсtions of first degree murder and theft of a motor vehicle. We vаcate the convictions of second degree murder, rоbbery and aggravated battery because they are necessarily included in the felony murder conviction. We remand this cause to the trial court for the purpose of resentencing the appellant in a manner consistent with this opinion.
REVERSED in part and REMANDED.
DAUKSCH, C.J., and COBB, J., concur.