Bush v. State

140 So. 3d 707, 2014 WL 2860104, 2014 Fla. App. LEXIS 9542

Opinion

PER CURIAM.

Anthony Bush appeals his convictions and sentences for armed robbery, grand theft, and the use of a firearm while committing felony grand theft. We affirm the convictions and sentences for armed robbery and grand theft without further comment, but reverse and vacate the conviction for use of a firearm while committing grand theft based on the State’s proper concession of error.

Bush’s conviction for the three offenses stemmed from the same incident, a robbery of a jewelry store. In finding him guilty of armed robbery, the jury determined Bush was in actual possession of a firearm during the offense. As such, the additional conviction for use of a firearm while- committing felony grand theft resulted in a double jeopardy violation. See Cleveland v. State, 587 So.2d 1145, 1146 (Fla.1991) (“[W]hen a robbery conviction is enhanced because of the use of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony under section 790.07(2).”). The State concedes the conviction was in error and must be vacated.

Accordingly, we affirm the convictions and sentences for armed robbery and grand theft but vacate the conviction and sentence for use of a firearm while committing grand theft.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED

THOMAS, MARSTILLER, and MAKAR, JJ., concur.