Pena v. State

619 So. 2d 435, 1993 Fla. App. LEXIS 6073, 1993 WL 187981

Opinion

HALL, Judge.

Isidro Santiago Pena appeals the order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He contends that the trial court improperly imposed consecutive three year mandatory minimum sentences for use of a firearm when sentencing him for second degree murder and aggravated battery. We agree.

The surviving victim testified at Pena’s trial that just a second passed between Pena’s hitting of her with the butt of his gun and Pena’s shooting and killing of her husband. This testimony clearly establishes that Pena committed the murder and the aggravated battery during a single criminal episode. The three year mandatory minimum sentences for possession of a firearm during the commission of a felony may not be imposed consecutively when the felonies were committed in the course of a single criminal episode. Palmer v. State, 438 So.2d 1 (Fla.1983).

Accordingly, we remand this case with directions to correct the sentences so that the minimum mandatory sentences are served concurrently.

Remanded.

THREADGILL and BLUE, JJ., concur.