Johnson v. State, 75--1764

• Court: Florida District Court of Appeals
• Writing for the Court: Before BARKDULL; PER CURIAM
• Citation: Johnson v. State, 338 So.2d 556 (Fla. App. 1976)
• Decision Date: 19 October 1976
• Docket Number: No. 75--1764,75--1764
• Parties: John Murry JOHNSON, Appellant, v. The STATE of Florida, Appellee.

Page 556

338 So.2d 556

John Murry JOHNSON, Appellant, v. The STATE of Florida, Appellee.

No. 75--1764.

District Court of Appeal of Florida, Third District.

Oct. 19, 1976.

Rehearing Denied Nov. 4, 1976.

Phillip A. Hubbart, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

PER CURIAM.

The appellant was charged with two counts of robbery, one count of assault with a deadly weapon, and one count of display of a firearm during the commission of a felony. One of the robbery counts was abandoned by the State, and the appellant was acquitted of assault with a deadly weapon. He was tried before the court without a jury and convicted of one count of robbery and display of a firearm during the commission of a felony. The trial court imposed one five year term of imprisonment on both convictions.

On appeal, it is argued that the trial court erred in imposing a general sentence on the charge of robbery and display of a firearm 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 year sentence is illegal under the Darden rule. See also Benson v. United States, 332 F.2d 288 (5th Cir. 1964). Appellant argues that the proof adduced at his trial established that he was one of two men who robbed a restaurant and that he held a gun on the individuals present in the restaurant. He argues that the testimony of the alleged victim, Mary Jane Cobb, was to the effect that she allowed the two individuals to take the money from her because 'they had a gun at my head.' It is, therefore, submitted that the information and the record at the trial clearly indicated that the gun displayed by the appellant was the force which was used to accomplish the robbery. Thusly, appellant contends that there was but one criminal action and, accordingly, only one sentence is proper, whereby he should have been sentenced for the robbery only. This reasoning is said to be required under the Florida Supreme Court decision of Cone v. State, 285 So.2d 12 (Fla.1973), where the defendant was charged with robbery and display of a firearm during the commission of a felony. In that case, the Florida Supreme Court held that where the information and record of the trial indicated that the two acts involved the same victim, sentence could be imposed only for the more serious crime, i.e., the robbery.

We find that the appellant's reliance on Cone v. State is misplaced inasmuch as Cone has been overruled by implication by the holdings and reasoning of subsequent Florida Supreme Court decisions. See Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); and State v. Ray, 331 So.2d 316 (Fla.1976). See also this court's decisions in Campbell v. State, 310 So.2d 319 (Fla.3d DCA 1975); and Swyers v. State, 334 So.2d 278 (Fla.3d DCA 1976). In the Campbell case, this court addressed the issue of whether the defendant can be separately sentenced for the crimes of rape and unlawful possession of a firearm when both...