SHERMAN TAYLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in imposing concurrent sentences for aggravated assault when the assault was a lesser included offense of armed robbery.
Appellant was convicted of armed robbery and aggravated assault for two separate incidents involving demanding money from convenience store employees …
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WENTWORTH, Judge.
These appeals challenge the imposition of two five year sentences for aggravated assault, to be served concurrently with sentences for armed robbery. The two cases have been consolidated.
In case 79-69-CF, arising out of an incident which occurred on February 13, 1979, appellant was convicted and sentenced to twenty-five years for armed robbery as well as five years for aggravated assault, the five year sentence to be served concurrently with the twenty-five year sentence. In case 79-97-CF, arising out of an incident occurring on February 14, 1979, appellant was convicted and sentenced to fifteen years for armed robbery as well as five years for aggravated assault, the five year sentence to be served concurrently with the fifteen year sentence. The sentences in 79-97-CF were to be served consecutive to the sentences in 79-69-CF. In each of the two incidents, appellant pointed a pistol at convenience store employees and demanded money. In each case, the aggravated assault of the employee was a lesser included offense of the armed robbery, since the assault was accomplished with a deadly weapon. Morrison v. State, 259 So. 2d 502 (Fla.3d DCA 1972). The court erred in imposing the five year concurrent sentences for aggravated assault. Douglas v. State, 349 So. 2d 694 (Fla. 1st DCA 1977).
The sentences for aggravated assault are therefore vacated and the causes remanded for disposition consistent herewith.
ERVIN and SHAW, JJ., concur.
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Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988)…(Fla. 1st DCA 1988); Rose v. State, 530 So. 2d 401 (Fla. 1st DCA 1988); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1987); Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1988); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); Taylor v. State, 391 So. 2d 788 (Fla. 1st DCA 1980), and Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988), the conviction of use of a firearm during the commission of the manslaughter should be reversed. As to the basic double jeopardy problem involved in convicting for both…
Authorities Cited
- Morrison v. State, 259 So. 2d 502 (Fla. 3d DCA 1972)
- Douglas v. State, 349 So. 2d 694 (Fla. 1st DCA 1977)