Musico v. State

545 So. 2d 964, 14 Fla. L. Weekly 1575, 1989 Fla. App. LEXIS 3668, 1989 WL 72731

Opinion

WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences for multiple counts of both aggravated assault with a firearm and use of a firearm during the commission of a felony. Each conviction for use of a firearm arose from an act for which a conviction for aggravated assault with a firearm was also obtained. Appellant contends that the trial court violated double jeopardy principles in convicting him of both offenses, where both offenses arose from a single act each time and each offense does not have a unique statutory element. We agree and reverse appellant’s convictions for those counts involving use of a firearm in the commission of a felony. See Hall v. State, 517 So.2d 678 (Fla.1988); Carawan v. State, 515 So.2d 161 (Fla.1987). Because these offenses were committed before the effective date for the 1988 amendment to section 775.021(4), Florida Statutes, that amendment need not be considered. Heath v. State, 532 So.2d 9 (Fla. 1st DCA 1988).

The convictions for use of a firearm in the commission of a felony are reversed and the cause remanded for resentencing.

THOMPSON and NIMMONS, JJ., concur.