Goens v. State

453 So. 2d 97, 1984 Fla. App. LEXIS 13724

Opinions

THOMPSON, Judge.

Goens appeals from judgments of guilt of the crimes of attempted second degree murder and armed burglary. The only issue warranting discussion is whether his three year mandatory minimum sentences for using a firearm in the commission of both crimes should run consecutively. We agree these sentences should not run consecutively.

While Goens was . burglarizing a closed business establishment, the owner, who lived nearby, approached the building on a personal errand. When the owner saw movement inside the building and peered through its front window to see who or what was inside, Goens shot him in the face. Both offenses were committed at the same time and place and occurred during a single criminal transaction or episode. Although § 775.021(4), Fla.Stat., requires separate sentences for separate offenses arising from a single criminal transaction or episode, it does not authorize the “stacking” of consecutive mandatory minimum three year sentences. Palmer v. State, 438 So.2d 1 (Fla.1983).

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

BARFIELD, J., concurs. NIMMONS, J., specially concurs.