Duhart v. State

District Court of Appeal of Florida

Duhart v. State

383 So. 2d 741, 1980 Fla. App. LEXIS 16712

District Court of Appeal of Florida·Decided May 13, 1980·No. No. 80-533·Published

Opinion

PER CURIAM.

On March 4, 1976, appellant was adjudicated guilty and sentenced to: life imprisonment for robbery; five years in the state penitentiary for unlawful possession of a weapon while engaged in a criminal offense; and five years in the state penitentiary, consecutive to the above sentences, on possession of a stolen motor vehicle. The conviction was affirmed here at 348 So.2d 387 (Fla. 3d DCA 1977). By collateral attack on the sentence, defendant alleged that it was error to sentence him on the count of possession of a firearm during the robbery. Johnson v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973).

Since the legality of the sentence now complained of was directly litigated in the prior appeal, the relitigation is now foreclosed in the state courts, Fla.R.Crim.P. 3.850; Epps v. State, 365 So.2d 179 (Fla. 1st DCA 1978); Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978); and apparently the federal courts as well, Kastenbaum v. United States, 588 F.2d 138 (5th Cir. 1979).

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

On March 4, 1976, appellant was adjudicated guilty and sentenced to: life imprisonment for robbery; five years in the state penitentiary for unlawful possession of a weapon while engaged in a criminal offense; and five years in the state penitentiary, consecutive to the above sentences, on possession of a stolen motor vehicle. The conviction was affirmed here at 348 So.2d 387 (Fla. 3d DCA 1977). By collateral attack on the sentence, defendant alleged that it was error to sentence him on the count of possession of a firearm during the robbery. Johnson v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973).

Since the legality of the sentence now complained of was directly litigated in the prior appeal, the relitigation is now foreclosed in the state courts, Fla.R.Crim.P. 3.850; Epps v. State, 365 So.2d 179 (Fla. 1st DCA 1978); Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978); and apparently the federal courts as well, Kastenbaum v. United States, 588 F.2d 138 (5th Cir. 1979).

Affirmed.

Duhart v. State, 383 So. 2d 741, 1980 Fla. App. LEXIS 16712 (Fla. Ct. App. 1980).

Pincite

383 So. 2d 741 (Duhart v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related