JUAN CREMADE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence for possession of a firearm during a felony was an improper enhanced sentence when the firearm was used in the commission of the robbery.
[1] A defendant cannot be sentenced for both robbery and possession of a firearm during the commission of a felony when the evidence shows the firearm was used in the commiss…
[2] A conviction for possession of a firearm during the commission of a felony is improper if it is a necessarily included offense within another charged felony for which the…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of robbery, aggravated battery, and possession of a firearm during a felony, with sentences to run concurrently. The jury spec…
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PER CURIAM.
The appellant was convicted of robbery, aggravated battery, and the use of a firearm in the commission of a felony. He was sentenced to 20 years for the robbery, 15 years for the use of a firearm in the commission of a felony, and one year for aggravated battery; sentences to run concurrently-
The appellant urges that the trial court erred in the sentence on the conviction for possession of a firearm while committing a felony, because this crime was a necessarily included offense in the conviction for robbery and because the evidence disclosed that the firearm was used during the robbery.1
We have examined Walton v. State, 360 So. 2d 50 (Fla. 2d DCA 1978), compare: State v. Munford, 357 So. 2d 706 (Fla.1978), and Section 775.021(4), Florida Statutes (1976), and determined that under the proof in this cause a firearm was involved in the robbery and the appellant was improperly given an enhanced sentence because of such possession. See: Section 812.13, Florida Statutes (1976). Therefore, we find that the trial court erred in the sentence on the firearm possession conviction.
The State relies heavily on this court’s opinion in Johnson v. State, 338 So. 2d 556 (Fla. 3d DCA 1976). This is misplaced in light of the Supreme Court holding in Johnson v. State, 366 So. 2d 418 (Fla.1978).
The other error urged, relating to the jury instruction on flight from the scene of the crime, has been examined and found to be without merit. Williams v. State, 268 So. 2d 566 (Fla. 3d DCA 1972); Spinkellink v. State, 313 So. 2d 666 (Fla.1975); Martinez v. State, 346 So. 2d 1209 (Fla. 3d DCA 1977).
Accordingly, we remand this case to the trial court with directions to set aside the sentence imposed for possession of a firearm while committing a felony. Otherwise, the convictions, adjudications and sentences are affirmed. The appellant need not be present for this purpose.
Affirmed in part, reversed in part with directions.
. In the jury verdict of guilt on this count, the jury specifically noted that the defendant did use a firearm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980)…Stevens v. State, 372 So. 2d 1370 (Fla.1979); Gonzalez v. State, 367 So. 2d 1008 (Fla.1979); Johnson v. State, 366 So. 2d 418 (Fla.1978); Cone v. State, 285 So. 2d 12 (Fla.1973); Barner v. State, 390 So. 2d 468 (Fla. 3d DCA 1980); Cremade v. State, 367 So. 2d 236 (Fla. 3d DCA 1979); (2) because the three-year minimum mandatory sentencing provisions of § 775.087(2)(a), Fla.Stat. (1979), are applicable to the robbery, not the possession count, Davis is entitled only to the vacation of the sentence on the posse…
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Fenelon v. State, 594 So. 2d 292 (Fla. 1992)…e defendant fled the scene of the crime. See, e.g., Feimster v. State, 491 So. 2d 321 (Fla. 3d DCA), review denied, 492 So. 2d 1331 (Fla.1986); Haywood v. State, 466 So. 2d 424 (Fla. 4th DCA 1985), approved, 482 So. 2d 1377 (1986); Cremade v. State, 367 So. 2d 236 (Fla. 3d DCA 1979); Villageliu v. State, 347 So. 2d 445 (Fla. 3d DCA 1977), cert. denied, 355 So. 2d 518 (Fla.1978); Martinez v. State, 346 So. 2d 1209 (Fla. 3d DCA), cert. denied, 354 So. 2d 983 (Fla.1977); but see Jackson v. State, 575 So. 2d 181,…
Authorities Cited
- Simkins Indus., Inc. v. Moreira, 313 So. 2d 666 (Fla. 1975)
- Spinkellink v. State, 313 So. 2d 666 (Fla. 1975)
- Johnson v. State, 366 So. 2d 418 (Fla. 1978)
- State v. Munford, 357 So. 2d 706 (Fla. 1978)
- Johnson v. State, 338 So. 2d 556 (Fla. 3d DCA 1976)
- Williams v. State, 268 So. 2d 566 (Fla. 3d DCA 1972)
- Martinez v. State, 346 So. 2d 1209 (Fla. 3d DCA 1977)
- Walton v. State, 360 So. 2d 50 (Fla. 2d DCA 1978)