final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. John L.
Thomas, Public Defender; Joanna A. Mauer, Assistant Public
Defender; and Kathleen Pafford, Assistant Public Defender,
Tallahassee, for Appellant.
Moody, Attorney General; and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
was convicted of trafficking in illegal drugs (heroin);
possession of cocaine and marijuana; violating section
790.07(2), Florida Statutes (2016) (having a firearm while
committing or attempting to commit a felony (drug possession
or trafficking)); resisting a law enforcement officer without
violence; and possession of drug paraphernalia. In this
direct appeal, Appellant argues that the trial court erred in
finding him competent; erred in denying his motion to
suppress his statements to law enforcement, as well as the
drugs and paraphernalia found on his person and in the car he
was driving; and fundamentally erred in instructing the jury
on the firearm offense. We reject these arguments on their
merits, and affirm each of Appellant's convictions and
sentences. We write only to address the jury instruction
detaining Appellant, law enforcement officers found a gun
under the driver's seat of the car Appellant had been
driving. The gun was within three inches of the front edge of
the seat, with the bottom of the handle pointed toward the
steering wheel and the muzzle pointed toward the
driver's-side door. The gun was loaded and there was a
cartridge in the chamber. Appellant was the major contributor
to the DNA found on the gun. The gun-related issue before us
is whether Appellant was convicted of a non-existent offense
because the jury instructions and verdict form, in places,
used slightly different language than that of section
790.07(2) and the language of the amended information. The
language from each source at issue is set forth below.
Statute. Section 790.07(2) provides as follows:
790.07 Persons engaged in criminal offense, having weapons.-
(2) Whoever, while committing or attempting to commit any
felony, displays, uses, threatens, or attempts to use any
firearm or carries a concealed firearm is guilty of a felony
of the second degree, punishable as provided in s. 775.082,
s. 775.083, and s. 775.084.
the original and amended informations cited section
790.07(2), and used the same verbs used in the statute, with
a different caption, "Possession of a firearm during the
commission of a felony." In pertinent part, the amended