EDUARDO VALENCIA SALAZAR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the conviction for burglary of an occupied dwelling with a firearm is not subsumed by the conviction for robbery with a firearm, but vacated the conviction for possession of a firearm during the commission of a felony.
The defendant was convicted of burglary of an occupied dwelling with a firearm, robbery with a firearm, and attempted murder with a firearm. The trial…
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PER CURIAM.
The defendant was convicted, inter alia, of a) burglary of an occupied dwelling with a firearm, and b) robbery with a firearm, and sentenced for the commission of the separate statutory offenses. We reject the claim that his conviction for burglary of an occupied dwelling with a firearm, under sections 810.02(2)(a) and (b), Florida Statutes (1987) is subsumed within his conviction of robbery with a firearm, pursuant to section 812.13, Florida Statutes (1987). By definition, each offense contains an element not common to the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); cf. Peterson v. State, 542 So. 2d 417 (Fla. 4th DCA 1989); see § 775.021(4)(a), Fla.Stat. (1989).
The defendant was also convicted of attempted murder with a firearm. The trial court ordered a departure sentence based upon the fact that the offense was committed upon a policeman in the line of duty. See Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985), aff'd, 483 So. 2d 423 (Fla.1986). Because the offense was committed on October 17, 1987, after section 921.001(5), Florida Statutes (1987) had taken effect, the ordered sentence is upheld based upon that valid reason for departure regardless of the presence of other reasons which may or may not have justified the enhanced sentence.
Finally, the defendant claims, and the state properly concedes, that the defendant’s convictions of burglary, robbery, and attempted murder, all with a firearm, preclude the additional punishment attendant upon a conviction of and sentence for possession of the same firearm. See Hall v. State, 517 So. 2d 678 (Fla.1988); Carawan v. State, 515 So. 2d 161 (Fla.1987).
For the foregoing reasons, the defendant’s conviction and sentence for possession of a firearm during the commission of a felony is vacated. In all other respects, his convictions and sentences are affirmed.
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Torrence v. State, 574 So. 2d 1188 (Fla. 3d DCA 1991)…inapplicable to this case. State v. Smith, 547 So. 2d 613 (Fla.1989); Hollinger v. State, 564 So. 2d 262 (Fla. 3d DCA 1990); Wright v. State, 561 So. 2d 1197 (Fla. 3d DCA 1990); Stanley v. State, 560 So. 2d 1269 (Fla. 3d DCA 1990); Salazar v. State, 560 So. 2d 1207 (Fla. 3d DCA), cause dismissed, 567 So. 2d 435 (Fla.1990); Jones v. State, 547 So. 2d 1278 (Fla. 3d DCA 1990); Gonzalez v. State, 543 So. 2d 386 (Fla. 3d DCA), rev. denied, 549 So. 2d 1014 (Fla.1989). The final judgment of conviction and sentence f…
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Guerra v. State, 578 So. 2d 315 (Fla. 3d DCA 1991)…illiams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983). We similarly find no error in the imposition of sentences in upward deviation from [*316] the guidelines. See Salazar v. State, 560 So. 2d 1207 (Fla. 3d DCA 1990), cause dismissed, 567 So. 2d 435 (Fla.1990); Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985), aff'd, 483 So. 2d 423 (Fla.1986); see also State v. Simpson, 554 So. 2d 506 (Fla.1989). We do conclude, as the state concedes, that t…
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Early Robins v. State, 605 So. 2d 1028 (Fla. 3d DCA 1992)…PER CURIAM. Affirmed. Salazar v. State, 560 So. 2d 1207 (Fla. 3d DCA), dismissed, 567 So. 2d 435 (Fla.1990); Viera v. State, 532 So. 2d 743 (Fla. 3d DCA 1988), review denied, 542 So. 2d 991 (Fla.1989); Baker v. State, 466 So. 2d 1144 (Fla.3d DCA 1985), affirmed, 483 So. 2d 423 (Fla.1986).…
Authorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)
- State v. Terence A. Baker, 483 So. 2d 423 (Fla. 1986)
- Peterson v. State, 542 So. 2d 417 (Fla. 4th DCA 1989)