FREDDIE LEWIS LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
This cause is before us on appeal from a judgment of guilty of attempted robbery with a firearm entered on a jury verdict, and from a sentence imposed of three to forty years in prison. Appellant correctly urges that, under Florida Statutes, Sections 812.13(2)(a) and 777.04(4)(b) (1979), attempted robbery with a firearm is a second degree felony for which the maximum penalty is fifteen years in prison. Florida Statutes, Section 775.082(3)(c) (1979). The enhanced penalty statute, Florida Statutes, Section 775.087 (1979), does not apply when the use of a firearm is an essential element of the offense. Crook v. State, 385 So. 2d 1136, 1138 (Fla. 1st DCA 1980). Other contentions raised on appeal are without merit.
Accordingly, the sentence is VACATED and the cause REMANDED for resentencing in accordance herewith.
McCORD, BOOTH and SHIVERS, JJ., concur.
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Gibson v. State, 403 So. 2d 1019 (Fla. 3d DCA 1981)…07, Florida Statutes (1977), involve the same criminal act as a necessary element of each offense, the defendants’ convictions and sentences for possession of a firearm may not stand. James v. State, 399 So. 2d 424 (Fla. 5th DCA 1981); Lee v. State, 400 So. 2d 1238 (Fla. 1st DCA 1981); Monroe v. State, 396 So. 2d 241 (Fla. 3d DCA 1981). Cf. Wooten v. State, 404 So. 2d 1072 (Fla. 3d DCA 1981) (convic [*1021] tion of petty larceny inconsistent with finding violation of § 790.07). The standard jury instruction o…
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Brown v. State, 458 So. 2d 313 (Fla. 5th DCA 1984)…rmed robbery is already an enhanced charge under the robbery statute. Hill v. State, 434 So. 2d 974 (Fla. 5th DCA 1983); see also Garvin v. State, 413 So. 2d 34 (Fla. 1st DCA 1981); Tittle v. State, 405 So. 2d 1007 (Fla. 1st DCA 1981); Lee v. State, 400 So. 2d 1238 (Fla. 1st DCA 1981); Richardson v. State, 398 So. 2d 1010 (Fla. 1st DCA 1981). We think this applies whether the proof at trial establishes that the defendant carried or used a firearm. See Whitehead v. State, 450 So. 2d 545 (Fla. 4th DCA 1984). Cri…
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Perry v. State, 425 So. 2d 1195 (Fla. 1st DCA 1983)…for which the maximum penalty is fifteen years in prison. Section 775.082(3)(c), Florida Statutes (1981). Section 775.087(l)(b), Florida Statutes (1981), does not apply when the use of a firearm is an essential element of the offense. Lee v. State, 400 So. 2d 1238 (Fla. 1st DCA 1981). The other contentions raised by appellant in his motion are without merit and do not warrant discussion. Accordingly, the order denying appellant's motion for post-conviction relief is REVERSED and the cause remanded for proce…
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- Flenoil Crook v. State, 385 So. 2d 1136 (Fla. 1st DCA 1980)