WILLIAM RUBIN COPELAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot be sentenced for both shooting a firearm in an occupied building and possessing a firearm by a convicted felon when both offenses arise from the same transaction, as the latter is a lesser included offense of the former.
Appellant was convicted of shooting a firearm within an occupied building and possession of a firearm by a convicted felon, arising from the same inci…
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OWEN, Chief Judge.
Appellant was convicted of both counts of a two-count information charging (1) unlawfully shooting a firearm within an occupied building, § 790.19 F.S., and (2) possession of a firearm by a convicted felon, § 790.23 F.S. On October 11, 1972 he was sentenced to serve IS years on the first count and a consecutive S-year term on the second count. Some 18 months later he filed a motion to vacate which, among other things, questioned the legality of the sentence on Count II. This appeal is from the denial of that motion.
Although appellant could have been guilty of Count II (possession of a firearm by a convicted felon) without having committed or been found guilty of Count I (unlawfully shooting a firearm within an occupied building), the converse of this is not true. Thus, since both of these offenses arose out of the same transaction, and the offense of shooting a firearm within an occupied building necessarily required that appellant, a convicted felon, have the firearm in his possession or control, appellant was subject only to a single sentence for the higher or more serious offense. Martin v. State, Fla.App.1971, 251 So. 2d 283; Lietch v. State, Fla.App.1971, 248 So. 2d 203.
The other grounds raised in the motion to vacate are without merit. The adjudications of guilt as to both offenses are affirmed, but the cause is remanded to the trial court with directions to vacate and set aside the consecutive 5-year sentence on Count II (possession of a firearm by a convicted felon).
Remanded with instructions.
WALDEN and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McPHALL v. State, 320 So. 2d 867 (Fla. 4th DCA 1975)…ced to five years in prison for the latter offense, the concurrent sentence of one year in the county jail on the conviction of carrying a concealed firearm should be and is hereby vacated. Cone v. State, 285 So. 2d 12 (Fla.1973); Copeland v. State, 313 So. 2d 54 (4th DCAFla.1975); Jackson v. State, 311 So. 2d 811 (1st DCAFla.1975); Yost v. State, 243 So. 2d 469 (3rd DCAFla.1971). No error otherwise appears and in all other respects the judgment and sentence as to appellant Crenshaw and the judgment and rem…
Authorities Cited
- Martin v. State, 251 So. 2d 283 (Fla. 1st DCA 1971)
- Lietch v. State, 248 So. 2d 203 (Fla. 4th DCA 1971)