CLYDE WALTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clyde Walton appealed his conviction and sentence for multiple drug and firearm offenses. The court affirmed his convictions but remanded for resentencing, holding that the trial court improperly imposed separate sentences for carrying a concealed firearm and carrying a concealed firearm while committing a felony, as the former is a necessarily lesser included offense of the latter.
The court held that the trial court erred in sentencing Walton for carrying a concealed firearm because this crime is a necessarily lesser included offense of carrying a concealed firearm while committing a felony, and both crimes were facets of the same transaction. Therefore, only one sentence should have been imposed.
[1] A defendant who pleads guilty or nolo contendere without an express reservation of the right to appeal has no right to a direct appeal.
[2] A trial court errs in sentencing a defendant for both carrying a concealed firearm and carrying a concealed firearm while committing a felony when the facts demonstrate t…
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“Appellant having pled guilty to the charges filed against him does not have the right to a direct appeal from that plea. Section 924.06(3), Florida Statutes (1977). We are not, however, precluded from reviewing appellant's sentence which we hold should be corrected.”
Establishes that while a guilty plea normally precludes direct appeal, the appellate court retains authority to review sentencing issues.
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Join FLexlaw to unlock all legal intelligenceWalton was charged in two informations: one with possession of marijuana, cocaine, and heroin in separate counts, and another with possession of a con…
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PER CURIAM.
The state filed one information charging appellant in separate counts with possession of marijuana, cocaine, and heroin and a second information charging him in Count I with possession of a concealed firearm and in Count II with possession of a concealed firearm while committing a felony. Appellant pled guilty to all the charges. Thereafter the court sentenced him to three concurrent five-year prison terms on the first information and two concurrent five-year prison terms on the second information. Appellant then filed a timely notice of appeal.
We do not consider any irregularity which might have occurred in the acceptance of appellant’s plea. Appellant having pled guilty to the charges filed against him does not have the right to a direct appeal from that plea. Section 924.06(3),1 Florida Statutes (1977). We are not, however, precluded from reviewing appellant’s sentence which we hold should be corrected.
We submit the trial court erred in sentencing appellant for carrying a concealed firearm because the factual basis developed for appellant’s plea demonstrates that the crimes of carrying a concealed firearm and carrying a concealed firearm while committing a felony were facets of the same transaction. Williams v. State, 349 So. 2d 800 (Fla. 2d DCA 1977). Section 775.021(4),2 Florida Statutes (1977), which limits the single transaction rule, does not change this result since carrying a concealed firearm is a necessarily lesser included offense of carrying a concealed firearm while committing a felony. In Brown v. State, 206 So. 2d 377, 382 (Fla.1968) the Supreme Court of Florida defined a necessarily lesser included offense as “an essential aspect of the major offense.” Under this definition it would be manifestly impossible to prove carrying a concealed firearm while committing a felony without also proving carrying a concealed firearm. See Huff v. State, 350 So. 2d 123 (Fla. 2d DCA 1977).
Accordingly, we remand this case to the trial court with directions to set aside the sentence for carrying a concealed firearm; otherwise affirmed. Appellant need not be present for this purpose.
BOARDMAN, C. J., and SCHEB and RYDER, JJ., concur. . (3) A defendant who pleads guilty or nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal. Such a defendant shall obtain review by means of collateral attack.
. (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
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Hackney v. State, 456 So. 2d 1209 (Fla. 5th DCA 1984)…IRMED. COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur. . See Ch. 921, Fla.Stat., and Fla.R.Crim.P. 3.701 and Form 3.988. . See Robinson v. State, 373 So. 2d 898 (Fla.1979); Smith v. State, 358 So. 2d 1164 (Fla. 2d DCA 1978); Walton v. State, 360 So. 2d 50 (Fla. 2d DCA 1978); Robbins v. State, 413 So. 2d 840 (Fla. 3d DCA 1982).…
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Gunn v. State, 641 So. 2d 462 (Fla. 4th DCA 1994)…es, threatens, or attempts to use any weapon ... or carries a concealed weapon is guilty of a felony of the third degree,.... (emphasis added) Clearly a defendant could not be validly convicted under both section 790.07 and 790.01. Walton v. State, 360 So. 2d 50 (Fla. 2d DCA 1978). Nor may a defendant be convicted under 790.07 for an offense for which the felony has been, as [*464] here, already enhanced by use of the weapon or firearm. Cleveland. In this case, however, the concealed firearm charge is sepa…
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Cremade v. State, 367 So. 2d 236 (Fla. 3d DCA 1979)…ssession of a firearm while committing a felony, because this crime was a necessarily included offense in the conviction for robbery and because the evidence disclosed that the firearm was used during the robbery.1 We have examined Walton v. State, 360 So. 2d 50 (Fla. 2d DCA 1978), compare: State v. Munford, 357 So. 2d 706 (Fla.1978), and Section 775.021(4), Florida Statutes (1976), and determined that under the proof in this cause a firearm was involved in the robbery and the appellant was improperly given…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Huff v. State, 350 So. 2d 123 (Fla. 2d DCA 1977)
- Williams v. State, 349 So. 2d 800 (Fla. 2d DCA 1977)