Darden v. State, No. 74--152

CourtCourt of Appeal of Florida (US)
Writing for the CourtMcNULTY
Citation306 So.2d 581
PartiesWillie Jasper DARDEN, Appellant, v. STATE of Florida, Appellee.
Decision Date24 January 1975
Docket NumberNo. 74--152

Page 581

306 So.2d 581
Willie Jasper DARDEN, Appellant,
v.
STATE of Florida, Appellee.
No. 74--152.
District Court of Appeal of Florida, Second District.
Jan. 24, 1975.

James A. Gardner, Public Defender, Sarasota, Harold H. Moore, Asst. Public Defender, and Steven H. Denman, Legal Intern, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.

McNULTY, Chief Judge.

Following pleas of nolo contendere, and pursuant to negotiations, appellant was sentenced to a general twenty year sentence for convictions of robbery, assault with intent to commit first degree murder with firearms and use of a firearm while committing a felony.

The sentencing insofar as it was for use of a firearm in commission of a felony was improper, being part of the same transaction as the robbery. 1

The general twenty year sentence is within the maximum for the aggregate of the remaining two crimes for which appellant was adjudicated guilty, the maximum sentence for robbery being life and for assault with intent to commit murder being fifteen years imprisonment. However, the very imposition of a general sentence presents various potential problems. These problems were discussed in Benson v. United States 2 which vacated a general sentence within the maximum of the crimes for which appellant was convicted and remanded for resentencing. Although this court has previously held a general

Page 582

sentence involving less than the maximum sentence to be harmless error, 3 we are now persuaded by the reasoning in Benson, supra, that the error is not harmless.

Therefore, the convictions are affirmed but the general twenty year sentence is hereby vacated. The case is remanded for resentencing, apportioning the negotiated twenty year sentence between the robbery and assault with intent to commit murder convictions.

HOBSON and GRIMES, JJ., concur.

---------------

1 Cone v. State (Fla.1973), 285 So.2d 12.

2 (5th Cir. 1963), 332 F.2d 288.

3 See Warucke v. State (Fla.App.2d, 1971), 247 So.2d 27.

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43 practice notes
  • Dorfman v. State, No. 50026
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...reasoning of the United States Fifth Circuit Court of Appeal in Benson v. United States, 332 F.2d 288 (5th Cir. 1964). Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). In Benson, the court had invalidated a general sentence because its imposition impeded appellate and collateral review of ......
  • State v. Hancock, No. 1
    • United States
    • Court of Appeals of Arizona
    • July 1, 1976
    ...District of Columbia and the Florida state courts. United States v. Straite, 138 U.S.App.D.C. 163, 425 F.2d 594 (1970); Darden v. State, 306 So.2d 581 (Fla.App.1975). See also: ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), § 5.6(iv), ('When sentenc......
  • Johnson v. State, No. 75--1764
    • United States
    • Court of Appeal of Florida (US)
    • October 19, 1976
    ...during the commission of a felony, where both charges arose out of a single transaction. The appellant relies upon Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975), for the proposition that general sentences on multiple counts are improper and, therefore, concludes that the general five yea......
  • Long v. State, No. 74--1025
    • United States
    • Court of Appeal of Florida (US)
    • March 26, 1975
    ...1975, 307 So.2d 238, this is considered to be a general sentence and, therefore, invalid. See Darden v. State, Fla.App.2d, 1975, 306 So.2d 581. For this reason, we have no alternative but to vacate the The judgment is Affirmed, but the case is remanded for proper sentencing. HOBSON, Acting ......
  • Request a trial to view additional results
43 cases
  • Dorfman v. State, No. 50026
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...reasoning of the United States Fifth Circuit Court of Appeal in Benson v. United States, 332 F.2d 288 (5th Cir. 1964). Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). In Benson, the court had invalidated a general sentence because its imposition impeded appellate and collateral review of ......
  • State v. Hancock, No. 1
    • United States
    • Court of Appeals of Arizona
    • July 1, 1976
    ...District of Columbia and the Florida state courts. United States v. Straite, 138 U.S.App.D.C. 163, 425 F.2d 594 (1970); Darden v. State, 306 So.2d 581 (Fla.App.1975). See also: ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), § 5.6(iv), ('When sentenc......
  • Johnson v. State, No. 75--1764
    • United States
    • Court of Appeal of Florida (US)
    • October 19, 1976
    ...during the commission of a felony, where both charges arose out of a single transaction. The appellant relies upon Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975), for the proposition that general sentences on multiple counts are improper and, therefore, concludes that the general five yea......
  • Long v. State, No. 74--1025
    • United States
    • Court of Appeal of Florida (US)
    • March 26, 1975
    ...1975, 307 So.2d 238, this is considered to be a general sentence and, therefore, invalid. See Darden v. State, Fla.App.2d, 1975, 306 So.2d 581. For this reason, we have no alternative but to vacate the The judgment is Affirmed, but the case is remanded for proper sentencing. HOBSON, Acting ......
  • Request a trial to view additional results

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