Jackson v. State, No. 91-0963

CourtCourt of Appeal of Florida (US)
Writing for the CourtSTONE; LETTS; DOWNEY; DOWNEY
PartiesLeroy JACKSON, Appellant, v. STATE of Florida, Appellee. 599 So.2d 752, 17 Fla. L. Week. D1406
Docket NumberNo. 91-0963
Decision Date03 June 1992

Page 752

599 So.2d 752
Leroy JACKSON, Appellant,
v.
STATE of Florida, Appellee.
No. 91-0963.
599 So.2d 752, 17 Fla. L. Week. D1406
District Court of Appeal of Florida,
Fourth District.
June 3, 1992.

Page 753

Leroy Jackson, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dawn S. Wynn, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, Judge.

We affirm an order denying a motion to correct an allegedly illegal sentence. In 1973 the appellant was charged, in three counts, with robbery and with assault with intent to commit first degree murder as to one victim, and aggravated assault as to another. He was convicted of the robbery and of assault with intent to commit murder in the second degree as to the first victim, and the aggravated assault as to the other.

Appellant contends that all three counts "merged" in the robbery conviction as part of the same "transaction." See generally Foster v. State, 286 So.2d 549 (Fla.1973), receded from by Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Cone v. State, 285 So.2d 12 (Fla.1973), overruling recognized by Johnson v. State, 338 So.2d 556 (Fla. 3d DCA1976); Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942), superseded by statute as stated in Wheeler v. State, 549 So.2d 687 (Fla. 1st DCA1989), rev. dismissed, 560 So.2d 235 (Fla.1990). The state relies simply on the common element analysis of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), arguing that there is an element in each crime not present in the other. However, the state does not address the appellant's essential argument that the "single transaction" rule, which was in effect at the time of his conviction, governs. See Borges v. State, 415 So.2d 1265 (Fla.1982). The legislature repudiated the "single transaction rule" by enacting Sec. 775.021(4), Fla.Stat. (1976).

Although we do not have the benefit of a transcript, we do have the information and the verdicts in our record. The information, as to count I, provided that Jackson

did then and there unlawfully, by force, violence or putting William Colville Chick in fear, feloniously rob, steal and take away from the person or custody of the said William Colville Chick certain personal property, to-wit: money, contrary to F.S. 813.011.

and, as to count II, that he did

unlawfully and feloniously, and from a premeditated design to effect the death of William Colville Chick, a human being, did make an assault upon William Colville Chick with a certain deadly weapon, to-wit: a sawed-off shotgun, a better and more particular description of same being to the State Attorney unknown, which deadly weapon the said...

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