ARMANDO HERNANDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hernandez appeals convictions for robbery, assault with intent to commit second-degree murder, and displaying/using a firearm while committing a felony, receiving consecutive sentences totaling 31 years. The court affirms the robbery conviction but reverses the assault conviction as merged into the robbery offense, and remands the firearm conviction to vacate the separate sentence imposed.
The robbery conviction is affirmed as supported by sufficient evidence. The assault with intent to commit second-degree murder conviction is reversed and set aside because it merges into the robbery offense as the assault was an essential element of the robbery and part of the same transaction. The firearm conviction is valid but remanded because only one sentence may be imposed for the use of the firearm in committing the single robbery transaction.
[1] A conviction for assault with intent to commit second degree murder merges with a conviction for robbery when the assault is an essential element of the robbery and part…
[2] A conviction for displaying or using a firearm while committing a felony merges with the underlying felony when the firearm use is a facet or phase of that single transac…
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Join FLexlaw to unlock all legal intelligence“the assault spoken of herein is the assault essential to the robbery herein, and, becoming a part of the "same offense," it merged in the robbery upon a valid finding thereof by the jury”
Establishes the merger doctrine principle that assault necessarily inherent in robbery merges into the robbery conviction
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Join FLexlaw to unlock all legal intelligenceAppellant and co-conspirators planned to rob an undercover Florida Bureau of Law Enforcement agent who was offering $15,000 to purchase illegal drugs.…
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Appellant directly appeals his convictions for robbery, assault with intent to commit second degree murder and the offense of displaying or using a firearm while committing a felony. He received three consecutive terms of imprisonment of 20 years, 10 years, and 1 year respectively.
The evidence sufficiently establishes that appellant, and others, intended a “rip off” of the $15,000 purchase money offered by a Florida Bureau of Law Enforcement undercover agent to purchase illegal drugs. That is to say, rather than deliver the drugs the co-conspirators planned merely to rob the agent. This was in fact accomplished and, indeed, violently so by the use of guns. The evidence is more than sufficient to establish this and thus supports the conviction for robbery. No prejudicial error being made to appear otherwise,1 the judgment and sentence for robbery must be affirmed.
Concerning the conviction for assault with intent to commit second degree murder, however, it is apparent that all the evidence concerning such assault related to the elements of fear and force embraced within the aforesaid robbery. The robbery, of course, would in turn have been an essential element of felony murder had a homicide occurred in the perpetration thereof. Therefore, any injection of murder or of assault to commit murder in this case is included within the felony murder concept noted above and thus is within the configuration of the robbery. Stated otherwise, the assault spoken of herein is the assault essential to the robbery herein, and, becoming a part of the “same offense,” it merged in the robbery upon a valid finding thereof by the jury. The judgment and sentence entered for assault with intent to commit second degree murder were imper-missibly incongruous, therefore, and must be reversed with directions that they be set aside and that defendant be discharged therefrom.
We come now to the third conviction herein, i. e., of displaying or using a firearm while committing a felony. The felony upon which this conviction is predicated is, again, the robbery involved herein. That is to say, the robbery was committed by use of the firearm contemplated by the charge. Accordingly, the use of the firearm becomes a facet or phase of the ,one transaction, to-wit: the robbery. This being so, and while a conviction might otherwise be proper, only one sentence may be *309imposed.2 Accordingly, as to the conviction of felon in possession of a firearm while committing a felony, the cause is remanded with directions that the sentence therefor be vacated and set aside.
Affirmed in part, reversed in part.
LILES, A. C. J., and HOBSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978)…have held in a situation like this, where we have a lesser included offense, that the two crimes merge together, although we have no citation to one specifically involving attempted murder and aggravated battery. For example, in Hernandez v. State, 278 So. 2d 307 (Fla.2d DCA 1973), the judgment and sentence for assault and commission of a felony with a firearm, were vacated and set aside where the defendant was also convicted of robbery. Similarly, it was held in Taylor v. State, 330 So. 2d 44 (Fla. 1st DCA…
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Hegstrom v. State, 388 So. 2d 1308 (Fla. 3d DCA 1980)…978); and Cone v. State, 285 So. 2d 12 (Fla. 1973). See also Gonzalez v. State, 367 So. 2d 1008 (Fla. 1979). Pre-Pinder District Court decisions were in silent disarray. Corn-pare Ennis v. State, 364 So. 2d 497 (Fla. 2dDCA 1978); Hernandez v. State, 278 So. 2d 307 (Fla. 2dDCA 1973); Yost v. State, 243 So. 2d 469 (Fla. 3dDCA 1971) (setting aside the sentence only), with Heisterman v. State, 327 So. 2d 839 (Fla. 3dDCA 1976); and Sloan v. State, 323 So. 2d 278 (Fla. 2dDCA 1975) (setting aside the judgment). Only…
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Adams v. State, 310 So. 2d 782 (Fla. 2d DCA 1975)…n unbroken chain of events triggered by the action of appellants resulting in the death of the victim. [*788] With deference, I do not agree with that part of the majority opinion concerning the applicability of Hernandez v. State, Fla.App.2d, 1973, 278 So. 2d 307. The Her(nandez decision states that the felony merges into the murder under the felony-murder rule. While I agree that the robbery is an essential element of the murder, under felony-murder, I reach this conclusion on the legal theory that felony-m…1 / 2
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- Harrington v. California, 395 U.S. 250 (U.S. 1969)
- Davis v. State, 277 So. 2d 300 (Fla. 2d DCA 1973)
- Easton v. State, 250 So. 2d 294 (Fla. 2d DCA 1971)