Parks v. State

300 So. 2d 903, 1974 Fla. App. LEXIS 8747

Opinions

WALDEN, Judge.

In this Court’s opinion, Parks v. State, 290 So.2d 562 (4th D.C.A.Fla.1974), we remanded the cause to the trial court with directions to determine the competency of the appellant at the time of his trial as required by Rule 3.210(a)(3) and (4), Florida Rules of Criminal Procedure, 33 F.S.A. This has been done. The Honorable Cecil H. Brown, Circuit Judge, conducted the appropriate and proper hearings and has adjudicated that at the time in question the appellant was legally sane and fully able to aid and assist counsel in the preparation and presentation of the defense at the trial on August 6, 1973.

We now consider the appellant’s remaining appellate points and find same to be without merit except as to a challenge to the sentencing. Counsel apparently agree, and we do, that the consecutive sentences of five years for Count II and fifteen years as to Count III are improper because these counts arose from the same transaction. Lietch v. State, 248 So.2d 203 (4th D.C.A.Fla.1971).

While we affirm defendant’s conviction and adjudication of guilt, we vacate the sentences imposed and remand with respectful instructions to re-sentence the defendant in accordance with the above cited authority.

Remanded with instructions.

CROSS, J., concurs. DOWNEY, J., dissents, with opinion.