Mathis v. State, s. 76-806 and 76-810

Decision Date26 July 1977
Docket NumberNos. 76-806 and 76-810,s. 76-806 and 76-810
Citation348 So.2d 1221
PartiesJohn MATHIS, a/k/a David Lee Mathis, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida 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.

BARKDULL, Judge.

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:

"Petitioner, who was convicted on a variety of counts, including first degree murder, after a lengthy trial before the United States District Court for the Middle District of Tennessee, Nashville Division, and whose conviction we affirmed in 424 F.2d 951 (6th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442 (1971), now appeals from denial by a Judge of that court of his motion to vacate sentence under 28 U.S.C. § 2255 (1970).

"As a discretionary matter, we decline to consider this issue. See Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). The Supreme Court has indicated, 'The concurrent sentence rule may have some continuing validity as a rule of judicial convenience.' Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2061, 23 L.Ed.2d 707 (1969). In Barnes v. United States, supra, it very recently squarely employed the concurrent sentence rule.

"We can think of few circumstances where the rule can be more aptly applied than here. Appellant was convicted upon four counts with the sentences shown below:

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.

"All of these sentences are concurrent. The 50-year sentence is not under attack. We can think of no set of circumstances where there could be meaningful collateral effects of the sentences he now attacks. See...

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10 cases
  • Jacobs v. State, 79-1643.
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 1980
    ...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
    • United States
    • Court of Appeal of Florida (US)
    • April 17, 1979
    ...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
    • United States
    • United States State Supreme Court of Florida
    • July 9, 2014
    ...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
    • United States
    • Court of Appeal of Florida (US)
    • April 28, 1981
    ...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 ......
  • Request a trial to view additional results

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