LARRY PAUL STILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Paul Still appeals his consecutive sentences for robbery, use of a firearm during a felony, and assault with intent to commit a felony. The appellate court vacates and remands for resentencing because the trial court imposed sentences without a presentence investigation and improperly imposed separate sentences for robbery and firearm use, which were phases of the same criminal transaction.
The trial court erred in imposing sentences without a presentence investigation when there was no indication of a prior felony conviction. The court also erred in imposing separate sentences for robbery and use of a firearm, which were phases of the same criminal action and should have resulted in only one sentence for the robbery conviction. However, a separate sentence for assault with intent to commit a felony was permissible as it constituted a different criminal act.
[1] When conflicting evidence exists on the issue of entrapment, the question of entrapment is properly submitted to the jury.
[2] Consecutive sentences may not be imposed for offenses that constitute facets or phases of the same criminal act.
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Join FLexlaw to unlock all legal intelligence“the trial court erred in imposing sentences upon appellant without the benefit of a presentence investigation, there being nothing in the record to indicate that appellant has been convicted of a prior felony offense”
Establishes that presentence investigation is required absent prior felony conviction
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Join FLexlaw to unlock all legal intelligenceStill was convicted by jury verdict of robbery, use of a firearm during the commission of a felony, and assault with intent to commit a felony. The tr…
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JOHNSON, Judge.
' We have for review consecutive sentences imposed upon convictions, entered pursuant to jury verdicts, for the offenses of robbery, use of a firearm during the commission of a felony and assault with intent to commit a felony. The sentences were imposed by the trial jury without the benefit of a presentence investigation.
It is contended by appellant that the trial court erred in imposing said sentences because (1) a presentence investigation was not conducted' and (2) each of the offenses charged was but a facet or phase of the same criminal transaction, and the only sentence which should have been imposed was for the highest offense charged, to wit: robbery. The State has candidly agreed that error occurred in these respects, but, with regard to the “single transaction” theory, it is urged by the State that the assault charge was a different phase or facet of the robbery charge.
We have carefully examined the record on appeal and the briefs filed by counsel. It is our conclusion that the trial court erred in imposing sentences upon appellant without the benefit of a presentence investigation, there being nothing in the record to indicate that appellant has been convicted of a prior felony offense. See Florida Rules of Criminal Procedure 3.710, 33 F.S.A.; Harden v. State, 290 So. 2d 551 (Fla.App. 1st, 1974) and Mitchum v. State, 292 So. 2d 620 (Fla.App. 1st, 1974). We further conclude that the robbery charge and the use of a firearm charge were but 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 sentences imposed the only error occurring herein, we would simply eliminate and vacate that portion of the sentence imposed for the use of a firearm charge without the necessity of bringing the appellant back into Court for new sentencing. However, in view of the fact that the trial court failed to order and consider a presentence investigation, the sentences imposed upon appellant are vacated and set aside and this case is remanded for further proceedings consistent with the cases cited in this opinion and with the requirements of Criminal Procedure Rule 3.-710.
It is so ordered.
SPECTOR, Acting C. J., and BOYER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lenson Hargrave v. State, 366 So. 2d 1 (Fla. 1978)…udge to order a presentence investigation report in all cases where a defendant has not previously been convicted of a felony. Harden v. State, 290 So. 2d 551 (Fla. 1st DCA 1974); Mitchum v. State, 292 So. 2d 620 (Fla. 1st DCA 1974); Still v. State, 296 So. 2d 67 (Fla. 1st DCA 1974); Nordone v. State, 307 So. 2d 907 (Fla. 3rd DCA 1975); Lopes v. State, 309 So. 2d 591 (Fla. 2nd DCA 1975); Buckles v. State, 310 So. 2d 748 (Fla. 1st DCA 1975); Grubbs v. State, 311 So. 2d 411 (Fla. 2nd DCA 1975); Davenport v. St…
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Lopes v. State, 309 So. 2d 591 (Fla. 2d DCA 1975)…lony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing j udge. (Emphasis supplied). See, also, Still v. State, Fla.App. 1st, 1974, 296 So. 2d 67. In an abundance of caution [*592] and to insure that appellant is afforded due process as provided by the rule, supra, the trial judge should have requested a presentence report. We do point out, however, that the sentence imposed was within the st…
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Yates v. State, 317 So. 2d 462 (Fla. 1st DCA 1975)…l, this Court feels compelled to affirm the conviction. It is also contended by the appellant that the trial court erred in imposing separate sentences for facts arising out of the same transaction. This court has previously held in Still v. State, 296 So. 2d 67 (Fla. App. 1st, 1974) that separate consecutive sentences could be entered on conviction for robbery and assault with intent to commit a felony, to-wit: robbery, because the “assault charge was a different phase or facet of the robbery charge. ...”…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Mitchum v. State, 292 So. 2d 620 (Fla. 1st DCA 1974)
- Harden v. State, 290 So. 2d 551 (Fla. 1st DCA 1974)
- Williams v. State, 287 So. 2d 382 (Fla. 1st DCA 1973)
- Norris v. State, 288 So. 2d 553 (Fla. 1st DCA 1974)