Bowen v. State

301 So. 2d 793 | Fla. Dist. Ct. App. | 1974

Concurrence Opinion

MANN, Judge (Ret.),

Concurring.

Because it was done this way in Simmons v. State, 1942, 151 Fla. 778, 10 So.2d 436, we persist in vacating the sentence in these cases without vacating the judgment. I concur because for present purposes the error; if it is one, seems harmless. I submit, however, that there is no purpose for which the sterile judgment, as to which no sentence may be passed, may be held to have any legal effect. There is a constitutional prohibition against successive prosecutions for essentially the same conduct. Fla.Const. Art. I, § 9; U.S.Const. Amend. V. Yet fairness to the state allows it to allege in one prosecution a variety of configurations of fact which might be supported by the evidence to form complete criminal offenses under our laws. As we explained in Edmond, supra, the prosecutor is allowed to fire all of his guns, but to score only one hit where the same conduct is described in various ways to describe the same criminal act. The question might become material if an effort were made to predicate punishment as a recidivist on multiple judgments for which the law forbids cumulative punishment. Common sense seems so clearly to indicate that such an effort would fail that I recall no instance of its being attempted. Why, then, do we persist in vacating a sentence without vacating the judgment ?

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Lead Opinion

PER CURIAM.

Appellant was convicted, under a two-count information, of breaking and entering an automobile with intent to commit larceny, as charged in County One, and of grand larceny as charged in Count Two. The evidence was sufficient to support the judgments under the charges as laid in the information. Accordingly, on the merits of the appeal no reversible error appears.

It is patent from the record that each offense occurred as a result of the same burglarious episode. Notwithstanding, contrary to our holding in Edmond v. State¹ the court entered two judgments and imposed two sentences.

We hold, as to Count One, that the judgment and sentence are lawful and should remain undisturbed. As to Count Two, however, the sentence should be, and it is hereby, vacated.²

One final matter needs our attention. We note that the written judgments entered herein erroneously reflect that each count consisted of a charge of breaking and entering an auto. The judgment as to Count Two should have reflected that such count involved the charge of grand larceny, not “B & E AUTO.” It is patent from the information, the evidence, the arguments of counsel" and the verdicts of the jury that such error is a scrivener’s error. Accordingly, upon remand the court is directed to clarify the record and amend the judgment on Count Two so as to reflect the conviction therein to be on the charge of grand larceny. The sentence imposed thereon, however, is vacated as indicated above.

McNULTY, C. J., and BOARDMAN, J., concur. MANN, J. (Ret.), concurs specially with opinion.

1 . (Fla.App.2d, 1973), 280 So.2d 449.

2 . Edmond v. State, id.