JAMES FOSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant's convictions for possession of a firearm during felony (Counts VI and VII) were lesser included offenses of the underlying felonies, so the sentences were vacated while convictions were affirmed.
Convictions for possession of a firearm during the commission of a felony are lesser included offenses of the underlying felonies, and while the convictions may stand, the sentences must be vacated.
[1] A conviction for possession of a firearm during the commission of a felony is a lesser included offense of the underlying felony, and while the conviction may stand, the…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceFoster was convicted of attempted first degree murder with a firearm, robbery with a firearm, aggravated battery with a firearm, attempted robbery wit…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Double Punishment cases and more on FLexlaw
DELL, Judge.
Appellant was convicted of attempted first degree murder of Joe Rutkowski with a firearm (Count I), robbery with a firearm of Joe Rutkowski (Count II), aggravated battery with a firearm of Edward Thomas (Count IV), attempted robbery with a firearm of Edward Thomas (Count V), possession of a firearm in commission of attempted first degree murder (Count VI), and possession of a firearm in commission of aggravated battery (Count VII).
He was adjudged guilty of each of those offenses, and was sentenced to serve 25 years in prison on Count I with a mandatory three year minimum. Three consecutive three year mandatory prison terms were imposed for appellant’s convictions of Counts II, IV and V for a total of a twelve year mandatory prison term. Five year prison sentences were imposed for Counts VI and VII, each to run concurrent.
Appellant contends that Counts VI and VII are lesser included offenses of Counts I and IV and thus his conviction for Counts VI and VII and the five year sentences should be vacated and set aside. Appellee concedes that the sentences which appellant received under Counts VI and VII (display of a firearm during the commission of a felony) should be vacated, but contends that the convictions under Counts VI and VII should stand.
We agree. See, State v. Hegstrom, 401 So. 2d 1343 (Fla.1981); State v. Monroe, 406 So. 2d 1115 (Fla.1981).
AFFIRMED IN PART; REVERSED IN PART with instructions to the trial court to vacate the sentences for possession of a firearm during an aggravated battery and possession of a firearm during the course of attempted murder. ANSTEAD and HERSEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Watkins v. State, 413 So. 2d 1275 (Fla. 1st DCA 1982)…ch appellant was convicted. If the crime charged in the second count is a lesser included offense of the crime charged in the first count, the second mandatory sentence was improperly imposed, and would also have to be vacated. See, Foster v. State, 409 So. 2d 1132 (Fla. 4th DCA 1982). Accordingly, the order of the court below is AFFIRMED in part, REVERSED in part, and REMANDED for attachment of those portions of the file and record which conclusively show appellant is entitled to no relief; or for an eviden…
Authorities Cited
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- State v. Williams, 406 So. 2d 1115 (Fla. 1981)