FRANCISCO E. HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed convictions for attempted robbery and attempted murder but remanded to modify mandatory minimum sentences to run concurrently rather than consecutively for offenses arising from a single criminal transaction.
Convictions for attempted robbery with a firearm and attempted third-degree murder with a firearm are affirmed, but mandatory minimum sentences must be modified to run concurrently when imposed for offenses arising from a single criminal transaction.
[1] Mandatory minimum sentences imposed pursuant to Florida Statutes section 775.087(2) for offenses arising from a single criminal transaction must be modified to run concur…
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted on five counts of attempted robbery with a firearm and one count of attempted third-degree murder with a firearm. The trial co…
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PER CURIAM.
Finding no error in the admission of defendant’s confession, his convictions on five counts of attempted robbery with a firearm and one count of attempted third-degree murder with a firearm are affirmed. See Barnason v. State, 371 So. 2d 680 (Fla. 3d DCA 1979), cert. denied, 381 So. 2d 764 (Fla.1980).
Despite the defendant’s argument to the contrary, the record does not reflect that the sentence imposed by the trial court after the trial of the case, although more severe than that discussed before trial, was imposed to penalize the defendant for exercising his right to be tried upon the offenses charged. Instead, the record reflects that it was not until the trial of the case that the trial court became aware of the outrageousness of the defendant’s conduct, and not until the receipt of a pre-sentence investigation report that the trial court learned that the defendant affirmatively denied his involvement with the crimes, which denial, deemed by the trial court to be untruthful, could be taken into account in imposing a harsher sentence. See United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Hector v. State, 370 So. 2d 447 (Fla. 1st DCA 1979).
We must, however, order that the three-year minimum terms of imprisonment imposed pursuant to Section 775.087(2), Florida Statutes (1981), on Counts 2 and 7 be modified to run concurrently with each other and with the three-year minimum term imposed on Count 1, these offenses all arising in the course of a single criminal transaction. ' See Palmer v. State, 438 So. 2d 1 (Fla.1983).
Affirmed; remanded for modification of sentence.
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Emiterio Zuniga v. State, 456 So. 2d 585 (Fla. 3d DCA 1984)…Hinton v. State, 347 So. 2d 1079 (Fla. 3d DCA 1977), but modify the consecutive minimum mandatory sentences imposed by the trial court to run concurrently each with the other, see Palmer v. State, 438 [*586] So. 2d 1 (Fla.1983); Hernandez v. State, 446 So. 2d 235 (Fla. 3d DCA 1984). Affirmed as modified.…
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Dasher v. State, 467 So. 2d 1054 (Fla. 3d DCA 1985)…tim, the imposition of consecutive three-year minimum mandatory prison terms was error. We agree with the defendant on this point only. Palmer v. State, 438 So. 2d 1 (Fla.1983); Warren v. State, 450 So. 2d 891 (Fla. 3d DCA 1984); Hernandez v. State, 446 So. 2d 235 (Fla. 3d DCA 1984). The final judgments of conviction under review are affirmed. The sentences under review are affirmed except for the consecutive three-year minimum mandatory sen [*1056] tences imposed thereon; as to the latter, the cause is rem…
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Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985)…cing guidelines. Reversed and remanded. . United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 52 L.Ed.2d 582 (1978); Hyde v. State, 438 So. 2d 1078 (Fla. 1st DCA 1983); Hector v. State, 370 So. 2d 447 (Fla. 1st DCA 1979); see Hernandez v. State, 446 So. 2d 235 (Fla. 3d DCA 1984) (defendant's out of court untruthfulness may be considered by court in determining sentence, citing to Grayson and Hector.)…
Authorities Cited
- United States v. Grayson, 438 U.S. 41 (U.S. 1978)
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Hector v. State, 370 So. 2d 447 (Fla. 1st DCA 1979)
- Barnason v. State, 371 So. 2d 680 (Fla. 3d DCA 1979)