Johnson v. State, No. 75--1764

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore BARKDULL; PER CURIAM
Citation338 So.2d 556
PartiesJohn Murry JOHNSON, Appellant, v. The STATE of Florida, Appellee.
Decision Date19 October 1976
Docket NumberNo. 75--1764

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.

Page 557

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,...

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15 practice notes
  • Dorfman v. State, No. 50026
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...be affirmed where sentence could have been imposed as to one count, as in Cone v. State, 285 So.2d 12 (Fla.1973). In Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976), the Third District remanded for resentencing because of record inconsistencies but stated that our decision in Cone had bee......
  • Jackson v. State, No. 91-0963
    • United States
    • Court of Appeal of Florida (US)
    • June 3, 1992
    ...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 (Fl......
  • Lowman v. State, No. 76-2262
    • United States
    • Court of Appeal of Florida (US)
    • December 27, 1977
    ...of the sentence imposed. Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976); Harris v. State, 338 So.2d 880 (Fla.3d DCA 1976); Williams v. State, 346 So.2d 67 Affirmed. ...
  • Johnson v. State, Nos. 50592
    • United States
    • United States State Supreme Court of Florida
    • December 21, 1978
    ...cases are here on certiorari granted to review the decisions of the District Court of Appeal, Third District, in Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1977) and McClain v. State, 341 So.2d 1075 (Fla. 3d DCA 1977). Since these decisions conflict with our holding in Cone v. State, 285 ......
  • Request a trial to view additional results
15 cases
  • Dorfman v. State, No. 50026
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...be affirmed where sentence could have been imposed as to one count, as in Cone v. State, 285 So.2d 12 (Fla.1973). In Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976), the Third District remanded for resentencing because of record inconsistencies but stated that our decision in Cone had bee......
  • Jackson v. State, No. 91-0963
    • United States
    • Court of Appeal of Florida (US)
    • June 3, 1992
    ...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 (Fl......
  • Lowman v. State, No. 76-2262
    • United States
    • Court of Appeal of Florida (US)
    • December 27, 1977
    ...of the sentence imposed. Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976); Harris v. State, 338 So.2d 880 (Fla.3d DCA 1976); Williams v. State, 346 So.2d 67 Affirmed. ...
  • Johnson v. State, Nos. 50592
    • United States
    • United States State Supreme Court of Florida
    • December 21, 1978
    ...cases are here on certiorari granted to review the decisions of the District Court of Appeal, Third District, in Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1977) and McClain v. State, 341 So.2d 1075 (Fla. 3d DCA 1977). Since these decisions conflict with our holding in Cone v. State, 285 ......
  • Request a trial to view additional results

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