Gaither v. State

436 So. 2d 289, 1983 Fla. App. LEXIS 22678

Opinion

OTT, Chief Judge.

Count 3 of a five-count information alleged that appellant carried a concealed .25 caliber automatic pistol. Count 5 alleged that while committing a felony appellant carried a concealed firearm, and the information described the same firearm as that described in count 3. Appellant was convicted and sentenced for both crimes.

Because the charging language requires proof of each and every element of count 3 for conviction under count 5, count 3 is a “category 2” lesser-included offense within count 5. See Fla.Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, p. 261-62. Principles of double jeopardy preclude convictions and sentences for both offenses. Bell v. State, 437 So.2d 1057 (Fla.1983).

Accordingly, appellant’s conviction and sentence for carrying a concealed weapon are REVERSED.

HOBSON and RYDER, JJ., concur.