Galban v. State

605 So. 2d 579, 1992 WL 240662

• Court: District Court of Appeal of Florida
• Decided: September 29, 1992
• Docket: 91-2434
• Status: Published

Opinion

605 So.2d 579 (1992)

Pedro GALBAN, Appellant,
v.
The STATE of Florida, Appellee.

No. 91-2434.

District Court of Appeal of Florida, Third District.

September 29, 1992.

Bennett H. Brummer, Public Defender, and Sheryl J. Lowenthal, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Barbara Arlene Fink, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BARKDULL and FERGUSON, JJ.

PER CURIAM.

This appeal is brought from convictions for second-degree murder and use of a firearm in the commission of a felony. We find no error in the trial court's refusal to allow defense counsel to cross-examine the State's witness with a hypothetical question that bore no relation to the facts of this case. See Sims v. State, 602 So.2d 1253 (Fla. 1992) (exclusion of immaterial evidence is not error); § 90.401, Fla. Stat. (1991).

We reverse the conviction for use of a firearm in the commission of a felony, however, on the authority of Pearson v. State, 603 So.2d 676 (Fla. 3d DCA 1992), where we held that convictions for second-degree murder with a firearm and unlawful possession of a firearm during the commission of a felony, based on the same act, were impermissibly duplicitous. Accord Goodman v. State, 567 So.2d 37 (Fla. 3d DCA 1990).

Affirmed in part, reversed in part, and remanded for resentencing.