Presley v. State

413 So. 2d 103, 1982 Fla. App. LEXIS 20655

Opinion

DELL, Judge.

Appellant was charged by information and convicted of Count I, aggravated assault as a lesser included offense of the charge of attempted murder; Count II, robbery; Count III, battery of a law enforcement officer; and Count IV, resisting arrest with violence. Appellant contends he was improperly convicted and sentenced twice for the same offense in that Count IV duplicates Counts I and III. Appellant further contends that the trial court erred in refusing to sentence him as a youthful offender.

We have examined the allegations of the information and the evidence and hold that Count IV is a lesser included offense of Counts I and III. Brown v. State, 206 So.2d 377 (Fla.1968). Although the conviction was proper, the sentence must be vacated. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Appellant does not qualify for mandatory youthful offender treatment. State v. Goodson, 403 So.2d 1337 (Fla.1981). The trial judge did not abuse his discretion by sentencing appellant as an adult.

The sentence for Count IV, resisting arrest with violence, is vacated. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.