CLIFFORD CONE AND NATHANIEL SANDERS, PETITIONERS,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed whether the trial court properly imposed separate concurrent sentences for armed robbery and displaying/using a firearm during the robbery. The court held that because both offenses were facets of the same criminal transaction, only the sentence for the highest offense (armed robbery) should have been imposed.
The trial court erred in imposing separate sentences for both offenses. When multiple counts in an information constitute facets or phases of the same transaction, only one sentence may be imposed, and it must be for the highest offense. The sentence for the firearm offense must be eliminated.
[1] When multiple offenses arise from the same transaction or criminal act, only one sentence may be imposed for the highest offense.
[2] A conviction for armed robbery and a conviction for displaying or using a firearm during the commission of that robbery, when arising from the same incident, constitute f…
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Join FLexlaw to unlock all legal intelligence“where an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence may be imposed, and for the higher offense”
States the governing legal rule established by Simmons v. State and Easton v. State that the petitioners relied upon
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Join FLexlaw to unlock all legal intelligenceClifford Cone and Nathaniel Sanders were charged in an information with two counts: (1) armed robbery of Barbara Kash from the Ocala Loan Company on J…
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PER CURIAM.
We review on conflict certiorari the per curiam without opinion decision of the District Court of Appeal, First District, in the case of Cone v. State, 265 So. 2d 108.
The question presented is whether the trial court erred in imposing upon defendants herein separate concurrent sentences (1) for the offense of armed robbery (life imprisonment) and (2) for the offense of displaying or using a firearm during the commission of the robbery (twenty years imprisonment) on the ground that according to the record proper herein each of the two offenses was a facet or phase of the same transaction or crime and the only sentence that should have been imposed was for the highest offense, i. e., armed robbery.
Petitioners contend the decision of the District Court conflicts with Simmons v. State, 151 Fla. 778, 10 So. 2d 436, and Easton v. State, DCA2d, 250 So. 2d 294, which hold that “where an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence may be imposed, and for the higher offense.”
Inspection of the record proper reveals the information filed in this case reads in salient part as follows :
“IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:
GORDON G. OLDHAM, JR„ State Attorney for the 5th Judicial Circuit of the State of Florida in and for Marion County, prosecuting for the State of Florida, in the said County, under oath, information makes that Clifford Cone and Nathaniel Sanders of the County of Marion and State of Florida, on the 10th day of June in the year of our Lord, one thousand nine hundred and seventy one, in the County and State aforesaid did, by force, violence, assault or putting in fear, feloniously rob, steal and take away from the person or custody of -Barbara Kash, money or other property of Ocala Loan Company, Inc., a Florida Corporation, the subject of larceny, in violation of Florida Statute 813.011
COUNT II:
“And the State Attorney aforesaid, under oath as aforesaid, further information makes that Clifford Cone and Nathaniel Sanders of the County of Marion and State of Florida, on the 10th day of June in the year of Our Lord, one thousand nine hundred and seventy one, in the County and State aforesaid, did willfully and knowingly, while committing a felony, to-wit: Robbery, did unlawfully display, use, threaten or attempt to use a firearm, to-wit: a pistol, a more particular description of which is to the State Attorney unknown; in violation of Florida Statute 790.07(2)
contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida.”
The reasonable inference to be drawn from the two counts of the information is that the two violations charged, robbery under F.S.Section 813.011, F.S.A., and the displaying or using of a firearm under F.S. Section 790.07(2), F.S.A., occuring on June 10th, 1971, were a part of the same transaction or crime involving the robbery of Barbara Kash. Having ascertained from the record proper the ostensible fact that the two crimes charged were a part of the same criminal act, we adverted to the transcript of testimony and a cursory inspection thereof confirmed the conclusion we drew from the language of the information that the two crimes charged were facets of the same criminal act.
On authority of Simmons v. State and Easton v. State, supra, the cause is remanded with directions that the sentence below be amended by eliminating therefrom the part sentencing defendants to “twenty years as to possession of firearm while engaged in a criminal offense.”
. It is so ordered.
CARLTON, C. J., and ERVIN, BOYD, McCAIN and DEKLE, JJ., concur. ROBERTS and ADKINS, JJ., dissent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (76 total)
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Borges v. State, 415 So. 2d 1265 (Fla. 1982)…978); State v. Heisterman, 343 So. 2d 1272 (Fla.1977); State v. Ray, 331 So. 2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975); Estevez v. State, 313 So. 2d 692 (Fla.1975); Foster v. State, 286 So. 2d 549 (Fla.1973); Cone v. State, 285 So. 2d 12 (Fla.1973); Williams v. State, 337 So. 2d 1038 (Fla. 1st DCA 1976), aff’d, 346 So. 2d 67 (Fla.1977); Swyers v. State, 334 So. 2d 278 (Fla. 3d DCA 1976); Panzavecchia v. State, 311 So. 2d 782 (Fla. 3d DCA 1975); Yost v. State, 243 So. 2d 469 (Fla. 3d…
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Dorfman v. State, 351 So. 2d 954 (Fla. 1977)…the maximum sentence which could have been imposed as to any one of the crimes for which the defendant was convicted.11 The Fourth District Court of Appeal apparently has not decided the issue. It has, however, applied our decision in Cone v. State, 285 So. 2d 12 (Fla.1973), and held that a single sentence imposed for crimes charged in a dual-count information and representing facets of the same criminal transaction will be treated as having been imposed for the highest offense and therefore not considered t…1 / 2
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White v. State, 377 So. 2d 1149 (Fla. 1979)…ADKINS, Justice. By petition for certiorari we have for review a decision of the Third District Court of Appeal (White v. State, 348 So. 2d 368 (Fla.3d DCA 1977)), which allegedly conflicts with a prior decision of the court (Cone v. State, 285 So. 2d 12 (Fla.1973)), and a subsequent decision of the court (Johnson v. State, 366 So. 2d 418 (Fla.1978)) on the same point of law. Art. Y, § 3(b)(3), Fla. Const. Appellant, defendant below, was convicted of robbery, unlawful possession of a firearm while…
Previewing 3 of 76 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. State, 151 Fla. 778 (Fla. 1942)
- Easton v. State, 250 So. 2d 294 (Fla. 2d DCA 1971)
- In re Tr. under Will of Edward M. Hyzer v. Hyzer, 265 So. 2d 108 (Fla. 3d DCA 1972)
- Brown v. State, 265 So. 2d 108 (Fla. 2d DCA 1972)