ALBERT RUSHING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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When a defendant is convicted of two crimes arising from a single transaction, and each crime is a facet of that transaction, a sentence should only be imposed for the highest crime charged.
Appellant was convicted of possessing a controlled substance with intent to deliver and delivery of a controlled substance, arising from a single tran…
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OTT, Judge.
Appellant was convicted of possessing a controlled substance with intent to deliver and delivery of a controlled substance. He was adjudicated guilty of these charges and sentenced to fifteen years on each count to be served concurrently.
In this appeal appellant argues that one of his two sentences must be set aside because both crimes occurred during a single episode in which appellant delivered heroin to an undercover agent, citing Williams v. State, 349 So. 2d 800 (Fla. 2d DCA 1977). We agree. When a defendant is convicted of two crimes in a single transaction, and each of the crimes is a facet of the same transaction, a sentence should be imposed for only the highest crime charged. Orange v. State, 334 So. 2d 277 (Fla. 3d DCA 1976). This rationale was applied by this court in Williams v. State, supra.
In the instant case both of the crimes for which appellant was convicted are second degree felonies punishable by a maximum term of imprisonment not exceeding fifteen years. Sections 893.-13(1)(a)1 and 775.082(3)(c), Florida Statutes (1975). It follows that either crime can be considered the “highest crime charged” for sentencing purposes under Orange v. State, supra. This being the case, the judgment of conviction for possessing a controlled substance with intent to deliver is affirmed, but the.sentence for that crime is hereby set aside.
The judgment of conviction for delivering a controlled substance is also affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So. 2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.
Remanded for proceedings consistent with this opinion.
HOBSON, Acting C. J., and DANAHY, J., concur.
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Cited By
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Gonzalez v. State, 449 So. 2d 882 (Fla. 3d DCA 1984)…hich it is included, third-degree felony murder3 — is that for the purpose of deciding which conviction and sentence will stand, the greater offense (same as the higher offense) is the one which carries the more severe penalty. See Rushing v. State, 355 So. 2d 501 (Fla. 2d DCA 1978). Therefore, appellant’s convictions and sentences for third-degree felony murder and attempted third-degree felony murder must be vacated. III. INCONSISTENT VERDICTS The first point of the cross-appeal challenges the court’s fin…
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Brown v. State, 584 So. 2d 209 (Fla. 1st DCA 1991)…esen-tenced appellant but failed to give him credit for additional time served between the imposition of the first and second sentences. A provision of credit for time served must be specific and include credit for all time served. Rushing v. State, 355 So. 2d 501 (Fla. 2d DCA 1978). The state submits that any error regarding credit for time served should be corrected but argues that such an error must first be raised pursuant to a Florida Rule of Criminal Procedure 3.800 motion. We disagree. Sentencing err…
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Wyman L. Austin v. State, 524 So. 2d 488 (Fla. 1st DCA 1988)…otal of 400 days “plus time served ” as jail credit. Accordingly, we must remand the cause to the trial court to correct the sentences to show the exact number of days of credit. Casteel v. State, 519 So. 2d 64 (Fla. 1st DCA 1988); Rushing v. State, 355 So. 2d 501 (Fla. 2d DCA 1978). ERVIN and THOMPSON, JJ., concur.…
Authorities Cited
- Brooks v. State, 349 So. 2d 794 (Fla. 2d DCA 1977)
- Orange v. State, 334 So. 2d 277 (Fla. 3d DCA 1976)
- Williams v. State, 349 So. 2d 800 (Fla. 2d DCA 1977)