Hernandez v. State
| Citation | 278 So.2d 307 |
| Decision Date | 11 May 1973 |
| Docket Number | No. 72--212,72--212 |
| Parties | Armando HERNANDEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Henry Gonzalez, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and David Luther Woodward, Asst. Atty. Gen., Tampa, for appellee.
Appellant directly appeals his convictions for robbery, assault with intent to commit second degree murder and the offense of displaying or using a firearm while committing a felony. He received three consecutive terms of imprisonment of 20 years, 10 years, and 1 year respectively.
The evidence sufficiently establishes that appellant, and others, intended a 'rip off' of the $15,000 purchase money offered by a Florida Bureau of Law Enforcement undercover agent to purchase illegal drugs. That is to say, rather than deliver the drugs the co-conspirators planned merely to rob the agent. This was in fact accomplished and, indeed, violently so by the use of guns. The evidence is more than sufficient to establish this and thus supports the conviction for robbery. No prejudicial error being made to appear otherwise, 1 the judgment and sentence for robbery must be affirmed.
Concerning the conviction for assault with intent to commit second degree murder, however, it is apparent that all the evidence concerning such assault related to the elements of fear and force embraced within the aforesaid robbery. The robbery, of course, would in turn have been an essential element of felony murder had a homicide occurred in the perpetration thereof. Therefore, any injection of murder or of assault to commit murder in this case is included within the felony murder concept noted above and thus is within the configuration of the robbery. Stated otherwise, the assault spoken of herein is the assault essential to the robbery herein, and, becoming a part of the 'same offense,' it merged in the robbery upon a valid finding thereof by the jury. The judgment and sentence entered for assault with intent to commit second degree murder were impermissibly incongruous, therefore, and must be reversed with directions that they be set aside and that defendant be discharged therefrom.
We come now to the third conviction herein, i.e., of displaying or using a firearm while committing a felony. The felony upon which this conviction is predicated is, again, the robbery involved herein. That is to say, the robbery was committed...
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Hegstrom v. State
...Pre-Pinder District Court decisions were in silent disarray. Compare Ennis v. State, 364 So.2d 497 (Fla. 2dDCA 1978); Hernandez v. State, 278 So.2d 307 (Fla. 2dDCA 1973); Yost v. State, 243 So.2d 469 (Fla. 3dDCA 1971) (setting aside the sentence only), with Heisterman v. State, 327 So.2d 83......
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Lindsey v. State, s. 80-95
...imprisonment merged into the greater crime of robbery. See, e.g., Sloan v. State, 323 So.2d 278 (Fla. 2d DCA 1975); Hernandez v. State, 278 So.2d 307 (Fla. 2d DCA 1973); Adkins, Florida Criminal Law and Procedure, § 32.11 (4th ed. 1977). The First District recently applied a similar rationa......
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Adams v. State
...Upon a finding of guilty of first degree murder the robbery merged therein and became merely a part thereof. See, Hernandez v. State, Fla.App.2d, 1973, 278 So.2d 307. The judgments and sentences for robbery must therefore be vacated and set That leaves us at this point, however, with the le......
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Simmons v. State, s. 72--590
...and set aside. Affirmed in part and reversed in part. HOBSON, A.C.J., and McNULTY and BOARDMAN, JJ., concur. 1 See, Hernandez v. State (Fla.App.1973), 278 So.2d 307. See also, Cone v. State, Fla.1973, 285 So.2d 12; Harris v. State (Fla.App.1973), 286 So.2d 32; Wright v. State (Fla.App.1973)......