Mathis v. State, s. 76-806 and 76-810
Decision Date | 26 July 1977 |
Docket Number | Nos. 76-806 and 76-810,s. 76-806 and 76-810 |
Citation | 348 So.2d 1221 |
Parties | John MATHIS, a/k/a David Lee Mathis, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
The defendant appeals from a revocation of probation 1 and from conviction of two counts of robbery, one count of possession of a firearm during the commission of a felony, and one count of possession of a short-barreled shotgun, pursuant to a jury verdict. The defendant was sentenced to the following: 30 years for each of the robbery convictions; 5 years for possession of a short-barreled shotgun (the sentence was suspended as to possession of a firearm during the commission of a felony); 5 years for revocation of probation, to run concurrently with the sentences imposed in Case No. 76-810.
The appellant urges that the trial court erred in refusing to instruct the jury on attempted possession of a short-barreled shotgun as a lesser included offense, in violation of Fla.R.Crim.P. 3.510, citing Brown v. State, 206 So.2d 377 (Fla.1968); Miles v. State, 258 So.2d 333 (Fla. 3rd D.C.A. 1972); Clark v. State, 301 So.2d 456 (Fla. 3rd D.C.A. 1974); State v. Terry, 336 So.2d 65 (Fla.1976).
The defendant was given five years for possession of a short-barreled shotgun, to run concurrently with the other sentences. Therefore, in light of the other sentences 2 accorded the defendant and under the reasoning of the following cases, we decline to entertain any alleged error in the trial judge's failure to give a charge on attempted possession of a short-barreled shotgun. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1942); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Radue, 486 F.2d 220 (5th Cir. 1973); Ethridge v. United States, 494 F.2d 351 (6th Cir. 1974); United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974). In Ethridge v. United States, supra, we find the following:
Count 8 murder to avoid apprehension for bank robbery 50 years.
Count 1 conspiracy to commit bank robbery and murder 5 years.
Count 2 bank robbery 20 years.
Count 3 possession of the proceeds of a bank robbery 10 years.
To continue reading
Request your trial-
Jacobs v. State, 79-1643.
...and decline to consider these issues. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Mathis v. State, 348 So.2d 1221 (Fla.3d DCA 1977), cert. denied, 357 So.2d 186 (Fla. 1978); see also, Bush v. State, 369 So.2d 674, 676, n. 2 (Fla.3d DCA 1979); Gibson v. St......
-
Bush v. State, s. 78-1043
...only a concurrent sentence was imposed. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978); see Gibson v. State, 368 So.2d 667, n.2 (Fla. 3d DCA ...
-
Jordan v. State
...applied after 1970: Foxx v. State, 392 So.2d 48 (Fla. 3d DCA 1981); Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977). 2. The Third District's analysis focused on the fact that Jordan was being resentenced on only one count, while his lon......
-
Pedrera v. State, 79-1201
...3d DCA 1973); State v. Mullin, 286 So.2d 36 (Fla. 3d DCA 1973); Morgan v. State, 303 So.2d 393 (Fla. 2d DCA 1974); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977); State v. Williams, 358 So.2d 1094 (Fla. 1st DCA 1978); State v. Sobel, 363 So.2d 324 (Fla.1978); Foster v. State, 369 So.2d ......