Pastor v. State

536 So. 2d 356, 1988 WL 138534

Opinion

536 So.2d 356 (1988)

Roberto PASTOR, Appellant,
v.
The STATE of Florida, Appellee.

No. 88-2515.

District Court of Appeal of Florida, Third District.

December 27, 1988. Rehearing Denied January 23, 1989.

Roberto Pastor, in pro. per.

Robert A. Butterworth, Atty. Gen., for appellee.

Before HUBBART, BASKIN and JORGENSON, JJ.

PER CURIAM.

Roberto Pastor appeals the denial of his motion pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief. Pastor was convicted of two offenses: attempted first degree murder with a deadly weapon; and unlawful possession of a deadly weapon while engaged in a criminal offense. He received a seventeen year sentence under count one, and a concurrent sentence of five years under count two. Because Pastor's possession and display of a firearm arose from the same actions upon which his conviction for attempted first degree murder with a deadly weapon is based, we hold that Pastor's conviction on that count violates the double jeopardy clauses of the state and federal constitutions. Hall v. State, 517 So.2d 678 (Fla. 1988); Carawan v. State, 515 So.2d 161 (Fla. 1987); Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988). We therefore reverse the trial court's order denying relief and remand with directions to vacate the conviction and sentence imposed for count two and to recalculate the sentence pursuant to the guidelines.

Pastor's remaining points lack merit.

REVERSED AND REMANDED.