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Ruffins v. State

Florida Court of Appeals, First District

December 27, 2019

Jerome Devin Ruffins, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. John L. Miller, Judge.

          Andy Thomas, Public Defender; Joanna A. Mauer, Assistant Public Defender; and Kathleen Pafford, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General; and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.

          KELSEY, J.

         Appellant 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 issue.

         I. Facts.

         After 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.

         The 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 Amended Information.

         Both 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 ...


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