Robbins v. State, No. 76-2264

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore HUBBART; HENDRY
Citation413 So.2d 840
Decision Date11 May 1982
Docket NumberNo. 76-2264
PartiesErnest ROBBINS, Appellant, v. The STATE of Florida, Appellee.

Page 840

413 So.2d 840
Ernest ROBBINS, Appellant,
v.
The STATE of Florida, Appellee.
No. 76-2264.
District Court of Appeal of Florida,
Third District.
May 11, 1982.

Page 841

Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and James H. Greason and Theda R. James, Asst. Atty. Gen., for appellee.

Before HUBBART, C. J., and HENDRY and NESBITT, JJ.

HENDRY, Judge.

In 1973, Robbins pled guilty to robbery and unlawful display of a firearm during the commission of the robbery. He was sentenced to five years imprisonment for the robbery, to be followed by three years probation on the unlawful display count.

After completing his prison sentence and while serving his probationary term, Robbins was charged with violation of probation. His probation was revoked and Robbins was sentenced to fifteen years imprisonment for the unlawful display of the firearm.

On appeal, this court affirmed 1 the trial court's order of revocation and sentence in reliance upon Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976). The Johnson case was subsequently overruled in Johnson v. State, 366 So.2d 418 (Fla.1978). The Supreme Court granted Robbins' petition for certiorari and remanded 2 the case to this court for reconsideration in light of its Johnson decision.

As in the first appearance of his case before this court, Robbins argues that the trial court lacked jurisdiction to impose the fifteen year sentence because the original order placing him on probation violated the "single transaction rule." He contends that robbery and unlawful possession of a firearm while engaged in a criminal offense are facets of the same transaction and sentence could only have been imposed for the highest offense, to-wit: robbery. We agree and reverse.

The record before us indicates that the display in question took place in the course of the robbery itself, constituting the element of force or putting in fear by which the robbery was accomplished. The law is well-settled that under these circumstances, one who is convicted both of robbery and display of a firearm during the commission of that robbery cannot be separately sentenced for each offense. 3 Johnson v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973). Thus, Robbins' initial probationary sentence was illegal.

The state argues, however, that relief in this court is precluded by Robbins' guilty plea and his failure to...

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12 practice notes
  • Streeter v. State, No. 81-1148
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1982
    ...because in excess of the maximum allowed, there exists fundamental error, Ex parte Bosso, 41 So.2d 322 (Fla.1949); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973), which is subject t......
  • Carr v. State, No. 82-1056
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 1983
    ...appears on the record, it is reviewable by this court despite the failure of the appellant to raise the issue below". Robbins v. State, 413 So.2d 840, 842 (Fla. 3d DCA In the case sub judice, the record clearly reflects that the information charged appellant with armed robbery and aggravate......
  • Leichtman v. Singletary, No. 94-1308
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 1996
    ...where a court has imposed an illegal sentence, even if the judgment and sentence have resulted from a guilty plea. See Robbins v. State, 413 So.2d 840, 841 (Fla. 3d DCA 1982) (citing Bridges v. State, 376 So.2d 233 (Fla.1979)); see also Chikitus v. Shands, 373 So.2d 904 (Fla.1979); Williams......
  • Hackney v. State, No. 83-1725
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 1984
    ...898 (Fla.1979); Smith v. State, 358 So.2d 1164 (Fla. 2d DCA 1978); Walton v. State, 360 So.2d 50 (Fla. 2d DCA 1978); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA...
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12 cases
  • Streeter v. State, No. 81-1148
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1982
    ...because in excess of the maximum allowed, there exists fundamental error, Ex parte Bosso, 41 So.2d 322 (Fla.1949); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973), which is subject t......
  • Leichtman v. Singletary, No. 94-1308
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 1996
    ...where a court has imposed an illegal sentence, even if the judgment and sentence have resulted from a guilty plea. See Robbins v. State, 413 So.2d 840, 841 (Fla. 3d DCA 1982) (citing Bridges v. State, 376 So.2d 233 (Fla.1979)); see also Chikitus v. Shands, 373 So.2d 904 (Fla.1979); Williams......
  • Carr v. State, No. 82-1056
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 1983
    ...appears on the record, it is reviewable by this court despite the failure of the appellant to raise the issue below". Robbins v. State, 413 So.2d 840, 842 (Fla. 3d DCA In the case sub judice, the record clearly reflects that the information charged appellant with armed robbery and aggravate......
  • Hackney v. State, No. 83-1725
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 1984
    ...898 (Fla.1979); Smith v. State, 358 So.2d 1164 (Fla. 2d DCA 1978); Walton v. State, 360 So.2d 50 (Fla. 2d DCA 1978); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA...
  • Request a trial to view additional results

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