CORNELIUS MCPHALL, JR., AND CLIFFORD L. CRENSHAW, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE; CORNELIUS MCPHALL, JR., APPELLANT, V. STATE OF FLORIDA, APPELLEE
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McPhall and Crenshaw appealed their convictions for drug and firearm offenses. The court affirmed their convictions but vacated McPhall's concurrent sentence for carrying a concealed firearm as a redundant conviction based on the same conduct underlying his conviction for possession of a firearm by a convicted felon.
The court vacated McPhall's concurrent sentence for carrying a concealed firearm as redundant, since it was merely a facet of the same criminal act underlying his conviction for possession of a firearm by a convicted felon. The court affirmed the denial of McPhall's motion to vacate his prior felony conviction and affirmed all other convictions and sentences.
[1] A conviction for carrying a concealed firearm may be vacated when it is a facet of the criminal act for which the defendant was convicted of possession of a firearm by a…
[2] A motion to vacate a prior felony conviction, which serves as the basis for a current conviction, will be affirmed on appeal when the appellant fails to provide a record…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“McPhall's conviction for attempted carrying of a concealed firearm (Count 4) was simply a facet of the criminal act for which he was convicted under Count 5, i. e., possession of a firearm by a convicted felon.”
Establishes the basis for vacating the redundant conviction—that the two convictions were based on the same underlying criminal conduct.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCrenshaw and McPhall were jointly tried on multiple counts. Crenshaw was convicted of possession of heroin and sentenced to five years. McPhall was co…
The full statement of facts, procedural history, and disposition for this case are member content.
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OWEN, Judge.
Clifford L. Crenshaw and Cornelius McPhall, Jr. were jointly tried on an amended information alleging several counts. Crenshaw was convicted of possession of heroin and sentenced to five years in prison. McPhall was convicted of (Count 1) attempted possession of heroin, (Count 4) attempted carrying a concealed firearm, and (Count 5) possession of a firearm by a convicted felon, for which he received concurrent sentences of one, one, and five years respectively. Their joint appeal is our Case No. 74-786.
After trial of the above offenses, but before the judgments and sentences were entered, McPhall filed his motion to vacate the prior felony conviction (grand larceny in October 1960) which had been the basis of his present conviction under Count 5 above. The motion to vacate was denied and McPhall’s appeal from that order is our Case No. 74 — 906.
McPhall and Crenshaw are represented by the same attorney and it was upon appellants’ motion that we consolidated the two appeals. However, appellant McPhall has neither furnished us a record nor argued any matter in his brief relative to appeal No. 74-906, and the order therein appealed denying McPhall’s motion to vacate the felony judgment of October 1960 is affirmed.
In reference to Case No. 74-786, it is apparent that McPhall’s conviction for at tempted carrying of a concealed firearm (Count 4) was simply a facet of the criminal act for which he was convicted under Count 5, i. e., possession of a firearm by a convicted felon. Fla.Stat. § 790.23 (1973). Since McPhall was sentenced 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 remaining sentences as to appellant McPhall are severally affirmed.
CROSS and DOWNEY, TJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Young v. State, 330 So. 2d 235 (Fla. 2d DCA 1976)…possession of a firearm by a felon and a consecutive 5-year sentence for carrying a concealed firearm. Appellant contends separate sentences were improper since the acts were facets of a single crime. We agree. McPhall v. State, Fla.App. 4th, 1975, 320 So. 2d 867, is controlling. Accordingly, we reverse the judgment and sentence on the escape conviction and remand for new trial. We affirm the judgment as to the convictions of possession of a firearm by a convicted felon and carrying a concealed firearm, but…
Authorities Cited
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Jackson v. State, 311 So. 2d 811 (Fla. 1st DCA 1975)
- Leona v. State, 313 So. 2d 54 (Fla. 3d DCA 1975)
- Copeland v. State, 313 So. 2d 54 (Fla. 4th DCA 1975)