Robinson v. State
| Decision Date | 23 September 1975 |
| Docket Number | No. X--452,X--452 |
| Citation | 323 So.2d 62 |
| Parties | Chris ROBINSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
Appellant was convicted on all counts of a three count information. Count I charged robbery; Count II charged use of a firearm during the commission of a felony; and Count III charged aggravated assault. Appellant contends and the evidence shows that all three charges were part of the same transaction or crime involving the robbery of Kathleen Copeland; and, thus, the sentences for the lesser of the three offenses cannot stand. The State agrees. See Cone v. State, Fla., 285 So.2d 12 (1973).
Appellant also contends that the trial court erred in denying his motion to dismiss Count II in that it charged use of a firearm during the commission of a felony without alleging the felony that appellant was allegedly perpetrating; that each count of an information must be complete within itself. Appellant moved initially to dismiss Count II (mistakenly referred to as Count III, though the body of the motion makes it clear that he was referring to Count II). If this were a single count information charging use of a firearm during the commission of a felony, there would be merit to appellant's contention but as part of the three count information it is clear that the felony was the robbery charged in Count I or the lesser included offense of the robbery which was charged separately in Count III. If appellant had any doubt of this, he could have requested a statement of particulars, which he did not do.
The cause is remanded with directions that the sentences below to 15 years imprisonment for use of a firearm during the commission of a felony and five years imprisonment for aggravated assault be vacated.
In our opinion on September 23, 1975, in this cause we remanded with directions that the sentences to 15 years imprisonment for use of a firearm during the commission of a felony (Count II) and five years imprisonment for aggravated assault (Count III) be vacated because such offenses, together with appellant's conviction of robbery (Count I), were all part of the same transaction or crime involving the robbery of Kathleen Copeland. We noted that the state agreed with the contention of the appellant in that regard. Now on petition for rehearing the state has called our attention to its error which was compounded by our acceptance thereof. Appellant was convicted of Count I which charged him with the robbery of one Kathleen Copeland. Count III of which appellant was convicted charged appellant with aggravated assault upon a different person--Quinn Waldron. While both offenses were committed in the course of a robbery of an S & S Food Store in White Springs,...
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