Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newbhard v. State

Florida Court of Appeals, Third District

December 20, 2017

Oba Newbhard, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 12-7548B, Maria Elena Verde, Judge.

          Carlos J. Martinez, Public Defender, and Marti Rothenberg and Jeffrey Paul DeSousa, Assistant Public Defenders, for appellant.

          Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.

          Before SALTER, EMAS and LOGUE, JJ.

          EMAS, J.

         INTRODUCTION

         Oba Newbhard was convicted by a jury of the crimes of attempted felony-murder, robbery with a firearm, and aggravated assault (two counts). In this appeal, Newbhard contends that the trial court erred in denying his motion for judgment of acquittal on the charge of attempted felony-murder because the State relied upon the same act to prove both the attempted felony-murder and the underlying robbery offense. We affirm, because the State established at trial that the attempted felony-murder included an intentional act that was not an essential element of the underlying robbery offense.

         FACTS

         The evidence at trial, in a light most favorable to upholding the jury's verdict, established the following:

         On the night of March 21, 2012, David Montesino, his girlfriend Janette Garcia, and their six-year old daughter were leaving their third-floor apartment to get something to eat. Montesino began walking down the stairs with his daughter, with Garcia not far behind. When Montesino reached the bottom of the stairs and began walking towards his car, he was approached by Newbhard, who was pointing a gun at him and demanding Montesino hand over the gold chain around Montesino's neck. Montesino took several steps back, at which time Newbhard grabbed Montesino's daughter, pointed the gun to her head, and demanded that Montesino hand over his chain. When Montesino confronted Newbhard, Newbhard released the daughter.

         By this point, Garcia had reached the bottom of the stairs, and Newbhard grabbed Garcia and pointed the gun to her head, again demanding that Montesino hand over his chain. Montesino agreed to give Newbhard his chain and, as he took off the chain and held it in his hand, Newbhard released Garcia.

         Newbhard and Montesino continued to argue and, during this time, Montesino knocked Newbhard's hat off his head, allowing Montesino a clear view of Newbhard's face. Thereafter, Montesino began to run, but Newbhard shot Montesino twice-once in the hand and once in the leg. After Montesino was shot, and while still running away from Newbhard, Montesino threw his gold chain at Newbhard. Newbhard then fled the scene with Montesino's gold chain. Montesino survived his injuries, and both he and Garcia identified Newbhard as the perpetrator.

         Newbhard was arrested and charged by amended information with, inter alia, armed robbery of Montesino; attempted felony-murder with a deadly weapon upon Montesino; aggravated assault with a firearm upon the daughter; and aggravated assault with a firearm upon Garcia.

         Following a jury trial, Newbhard was convicted of all counts. The trial court adjudicated Newbhard guilty and sentenced him to life in prison on the armed robbery and the attempted felony-murder and to five years in prison for each aggravated assault, all sentences to run concurrently.[1] This appeal follows.

         ANALYSIS

         We look first to the relevant language of the felony-murder and robbery statutes, as well as the allegations contained in the information. We then consider the evidence presented at trial to determine whether, as Newbhard asserts, the State relied upon the same ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.