Gaither v. State

District Court of Appeal of Florida

Gaither v. State

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

CourtDistrict Court of Appeal of Florida

DecidedJuly 29, 1983

DocketNo. 82-2229

StatusPublished

Cited by1 cases

This text of 436 So. 2d 289 (Gaither v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gaither v. State, 436 So. 2d 289, 1983 Fla. App. LEXIS 22678 (Fla. Ct. App. 1983).

Pincite

Opinion

OTT, Chief Judge.

Count 3 of a five-count information alleged that appellant carried a concealed .25 [290]*290caliber 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.

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