Mitchell v. State

289 So. 2d 54

Opinion

MANN, Chief Judge.

We find no coercive element, through “gentle persuasion” or otherwise, involved in the process of obtaining Mitchell’s statement. Mitchell asked to talk with Officer Spence, in whom he had confidence. There is no suggestion of improper inducements or threats. We therefore regard Rogers v. Richmond, 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 and Lynumn v. Illinois, 1963, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 as inapposite.

We accordingly affirm the judgment. Mitchell was properly sentenced to 15 years for the offense of using a firearm in the commission of a felony, Fla.Stat. 790.07 (1971), F.S.A., but the additional sentence for attempted robbery, an offense of lower degree, was improper under the rule of Cone v. State, Fla.1973, 285 So.2d 12, opinion filed March 7, 1973, rehearing denied December 4, 1973. See Also Edmond v. State, Fla.App.2d 1973, 280 So.2d 449.

The judgment is affirmed. The sentence entered on the attempted robbery count is vacated. Under the circumstances, we see no need for a return of Mitchell to the Circuit Court for any further proceeding.

GRIMES, J., and NANCE, L. CLAYTON, Associate Judge, concur.