WILLIE JAMES JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie James Johnson appealed his conviction and sentencing, challenging both the propriety of sentencing by a substitute judge and the conviction on two counts of aggravated assault. The Florida appellate court reversed the sentencing due to improper substitution of judges and reversed one aggravated assault conviction, but affirmed the remaining convictions.
The substitution of judges for sentencing without showing of necessity was improper and grounds for reversal and remand for resentencing. Johnson was improperly sentenced on two counts of aggravated battery instead of one count of aggravated assault and one count of aggravated battery; however, the assault convictions themselves were proper as they constituted separate and distinct assaults from the attempted robbery. The trial judge did not err in evidentiary rulings.
[1] A substitute judge may not impose sentence in the absence of a showing of necessity.
[2] A defendant cannot be convicted of aggravated assault and aggravated battery for the same conduct that forms the basis of an attempted robbery charge, unless the assaults…
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Join FLexlaw to unlock all legal intelligence“The record reflects no unusual or exigent circumstances necessitating sentencing by anyone other than the trial judge.”
Establishes the standard that substitute judge sentencing requires showing of necessity, which was absent here.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was tried by Judge Wayne M. Carlisle on charges including attempted robbery, aggravated assault, aggravated battery, burglary, and possession …
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THOMPSON, Judge.
The appellant contends in part that his sentencing by a substitute judge was improper in the absence of any showing of necessity therefor, and that he was improperly adjudicated guilty of twc counts of aggravated assault. We agree that the trial judge erred in these respects and reverse.
Appellant was tried by Judge Wayne M. Carlisle on an information charging one count of attempted robbery, one count of aggravated assault, one count of aggravated battery, one count of burglary, and one count of possession of a firearm by a convicted felon. He was sentenced by Judge R. A. Green, Jr., on one count of attempted robbery, two counts of aggravated battery, and one count of possession of a firearm by a convicted felon.
There is merit in appellant’s contention that he was improperly sentenced by Judge Green instead of by Judge Carlisle, who conducted the trial. The record reflects no unusual or exigent circumstances necessitating sentencing by anyone other than the trial judge. Accordingly, we reverse and remand for resentencing under the guidelines set forth in Lawley v. State, 377 So. 2d 824 (Fla. 1st DCA 1979). The court also improperly sentenced the appellant on two counts of aggravated battery instead of one count of aggravated assault and one count of aggravated battery. At resentencing, the trial judge should correct these errors in the judgment and sentence and should determine how much, if any, credit the appellant should receive for jail time served prior to sentencing.
It is also contended that the trial judge erred in respect to certain evidentiary rulings and in finding that the aggravated assault and aggravated battery committed by the appellant were not category IV lesser included offenses of the attempted robbery. Although proof of an assault is a necessary element of proof of the attempted robbery charge, the appellant in this case was guilty of two additional separate and distinct assaults against the victim and his wife. These additional distinct assaults are a proper basis for the aggravated assault and aggravated battery convictions and sentences and do not, under the circumstances of this case, constitute lesser included offenses of the attempted robbery. We find no error in the evidentiary rulings of the trial court.
Affirmed in part, and reversed and remanded with instructions.
MILLS and WENTWORTH, JJ., concur.
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Johnson v. State, 557 So. 2d 223 (Fla. 1st DCA 1990)…uary 1, 1987,2 his motion is untimely and therefore denied. AFFIRMED. WENTWORTH and BARFIELD, JJ., concur. . See Fla.R.Crim.P. 3.850. . The opinion written on appellant’s direct appeal was filed on February 16, 1982. See Johnson v. State, 409 So. 2d 1158 (Fla. 1st DCA 1982). Under Rule 3.850, a person whose judgment and sentence became final prior to January 1, 1985, had until January 1, 1987, to file a motion in accordance with the rule. Appellant did not file his motion until June 9, 1989.…
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Johnson v. State, 426 So. 2d 1134 (Fla. 1st DCA 1983)…PER CURIAM. This is an appeal from sentences entered pursuant to the mandate of this court in Johnson v. State, 409 So. 2d 1158 (Fla. 1st DCA 1982). Following a jury trial before Judge Wayne M. Carlisle, appellant was convicted of attempted robbery with a firearm, aggravated battery, aggravated assault, and possession of a firearm by a convicted felon. Subsequently, Judge R…
Authorities Cited
- Lawley v. State, 377 So. 2d 824 (Fla. 1st DCA 1979)