DAVID MCFARLAND NORRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for assault with intent to commit a felony and use of a firearm was affirmed, but the case was remanded to eliminate the consecutive ten-year sentence for the firearm offense because both crimes constituted a single criminal transaction under Cone and Sanders v. State.
When use of a firearm occurs during an assault with intent to commit a felony, both offenses constitute a single criminal transaction and only one sentence for the highest offense may be imposed.
[1] When use of a firearm occurs as part of an assault with intent to commit a felony, both offenses constitute a single criminal transaction and only one sentence for the hi…
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Join FLexlaw to unlock all legal intelligence“the use of a firearm occurred during the assault with intent to commit a felony, and hence the two crimes charged were but a facet or phase of the same criminal act or transaction and only one sentence for the highest offense charged may be imposed”
Court's explanation for remanding for resentencing
Appellant was convicted by jury of assault with intent to commit a felony and use of a firearm while attempting to commit a felony, receiving two cons…
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PER CURIAM.
Appellant seeks reversal of his conviction and two consecutive ten-year sentences imposed after being found guilty by a jury on charges of assault' with intent to commit a felony and use of a firearm while attempting to commit a felony.
We have carefully reviewed the merits of the points of error assigned in this appeal, and conclude that appellant has failed to demonstrate the reversible error was committed during the trial proceedings. Accordingly, the judgments and convictions herein are affirmed.
However, in light of the Florida Supreme Court case of Cone and Sanders v. State, 285 So. 2d 12, Opinion filed March 7, 1973, and petition for rehearing denied on December 4, 1973, we must remand this cause for elimination of the ten-year consecutive sentence imposed for use of a firearm while attempting to commit a felony. Thé record on appeal clearly illustrates that the use of a firearm occurred during the assault with intent to commit a felony, and hence the two crimes charged were but a facet or phase of the same criminal act or transaction and only one sentence for the highest offense charged may be imposed.
Affirmed in part and remanded for correction of sentences by eliminating the part of the sentence imposed for use of a firearm while attempting to commit a felony.
It is so ordered.
SPECTOR, Acting C. J., and JOHNSON and BOYER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Still v. State, 296 So. 2d 67 (Fla. 1st DCA 1974)…t facets or phases of the same criminal action and that only one sentence should have been imposed for the robbery conviction. See Cone v. State, 285 So. 2d 12 (Fla.1973); Williams v. State, 287 So. 2d 382 (Fla.App. 1st, 1973); and Norris, v. State, 288 So. 2d 553 (Fla.App. 1st, 1974). We fully agree with the State’s contention that the third offense charged, assault with intent to commit a felony, was a different and separate criminal act for which a separate sentence could be imposed. Were the number of se…
Authorities Cited
- Cone v. State, 285 So. 2d 12 (Fla. 1973)