Nowlin v. State

District Court of Appeal of Florida

Nowlin v. State

320 So. 2d 468, 1975 Fla. App. LEXIS 15455

CourtDistrict Court of Appeal of Florida

DecidedJanuary 10, 1975

DocketNo. 74-599

StatusPublished

Cited by3 cases

This text of 320 So. 2d 468 (Nowlin 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.

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Nowlin v. State, 320 So. 2d 468, 1975 Fla. App. LEXIS 15455 (Fla. Ct. App. 1975).

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Opinions

DOWNEY, Judge.

From our consideration of the briefs and record in this cause we are not persuaded that the points raised by appellant demonstrate error. In any event, if there was any error it was harmless. Section 924.33, F.S., 1973; McDonnell v. State, Fla.App.1974, 292 So.2d 420.

Although not raised, we take note of the sentence as fundamental error. Appellant was convicted of robbery, use of a firearm in the commission of a felony and aggravated assault and sentenced to concurrent sentences of life imprisonment, IS years and 5 years, respectively. Since all three charges were but facets and the same transaction, appellant should have been sentenced on the robbery count only. Cone v. State, Fla.1973, 285 So.2d 12. Accordingly, the sentences for use of a firearm in the commission of a felony and aggravated assault are vacated. In all other respects the judgment and sentence appealed from is affirmed.

Affirmed in part and reversed in part.

MAGER, J., concurs. ALDERMAN, JAMES E., Associate Judge, dissents, with opinion.

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DOWNEY, Judge.

From our consideration of the briefs and record in this cause we are not persuaded that the points raised by appellant demonstrate error. In any event, if there was any error it was harmless. Section 924.33, F.S., 1973; McDonnell v. State, Fla.App.1974, 292 So.2d 420.

Although not raised, we take note of the sentence as fundamental error. Appellant was convicted of robbery, use of a firearm in the commission of a felony and aggravated assault and sentenced to concurrent sentences of life imprisonment, IS years and 5 years, respectively. Since all three charges were but facets and the same transaction, appellant should have been sentenced on the robbery count only. Cone v. State, Fla.1973, 285 So.2d 12. Accordingly, the sentences for use of a firearm in the commission of a felony and aggravated assault are vacated. In all other respects the judgment and sentence appealed from is affirmed.

Affirmed in part and reversed in part.

MAGER, J., concurs. ALDERMAN, JAMES E., Associate Judge, dissents, with opinion.

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320 So. 2d 468, 1975 Fla. App. LEXIS 15455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nowlin-v-state-fladistctapp-1975.

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