State v. Patton

Summary

The Fifth District Court of Appeals affirmed Kevin Patton’s convictions and sentence for attempted murder and improperly discharging a firearm at or into a habitation. The court held that Patton forfeited his allied-offenses argument by failing to raise it in the trial court or assert plain error, and concluded that the offenses would not merge in any event because the firearm discharges occurred separately.

Holdings

1. Failure to seek merger of allied offenses in the trial court forfeits the claim for appellate review, and an appellate court will not independently create a plain-error argument when the appellant does not raise plain error.
2. The offenses did not merge because the evidence supported a finding that they were committed separately: Patton fired three shots at Hackett while Hackett was on the porch and fired a fourth shot later while fleeing from Hackett.

Questions Presented

1. Whether the trial court plainly erred by failing to merge attempted murder and improperly discharging a firearm at or into a habitation for sentencing as allied offenses of similar import.
2. Whether the appellate court should consider the allied-offenses claim when Patton failed to preserve it in the trial court and did not expressly raise plain error on appeal.

Disposition

affirmed