ROBERTO PASTOR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1988-12-27
No. 88-2515
Before HUBBART, BASKIN and JORGENSON, JJ.
536 So. 2d 356 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 25 cases
Opinion of the Court
PER CURIAM.

PER CURIAM.

Roberto Pastor appeals the denial of his motion pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief. Pastor was convicted of two offenses: attempted first degree murder with a deadly weapon; and unlawful possession of a deadly weapon while engaged in a criminal offense. He received a seventeen year sentence under count one, and a concurrent sentence of five years under count two. Because Pastor’s possession and display of a firearm arose from the same actions upon which his conviction for attempted first degree murder with a deadly weapon is based, we hold that Pastor’s conviction on that count violates the double jeopardy clauses of the state and federal constitutions. Hall v. State, 517 So. 2d 678 (Fla.1988); Carawan v. State, 515 So. 2d 161 (Fla.1987); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988). We therefore reverse the trial court’s order denying relief and remand with directions to vacate the conviction and sentence imposed for count two and to recalculate the sentence pursuant to the guidelines.

Pastor’s remaining points lack merit.

REVERSED AND REMANDED.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (25 total)

  • State v. Smith, 547 So. 2d 613 (Fla. 1989)
    …d on Cara-wan. See Merckle v. State, 541 So. 2d 1312 (Fla. 2d DCA 1989); Spadaro v. State, 539 So. 2d 1169 (Fla. 2d DCA 1989); Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989); Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988); and Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988), all holding that Carawan is applicable to convictions obtained prior to its rendition. Contra, Harris v. Stat…
  • Herrin v. State, 568 So. 2d 920 (Fla. 1990)
    …nt reason to support the departure. We note, however, that other courts have permitted downward [*922] departures based primarily upon a defendant’s potential for rehabilitation. State v. Whiddon, 554 So. 2d 651 (Fla. 1st DCA 1989); State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988); State v. Morales, 522 So. 2d 464 (Fla. 4th DCA 1988). For purposes of guidelines departures, we believe that a defendant’s substance abuse must be considered together with his or her amenability to rehabilitation. Except in case…
  • Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)
    …1st DCA 1988); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); Cooper v. State, 524 So. 2d 738 (Fla. 1st DCA 1988); McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988); Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1988); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988); Hurd v. State, 536 So. 2d 361 (Fla. 3d DCA 1988); Anderson v. State, 530 So. 2d 1104 [*118] (Fla. 3d DCA 1988); Monsanto v. State, 530 So. 2d 952 (Fla. 3d DCA 1988); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988); Evans v. Sta…

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