326 So. 2d 186 | Fla. Dist. Ct. App. | 1975
Appellant-defendant, Lyman Bruton, was charged by information with, in count one, attempted breaking and entering of an automobile with intent to commit larceny and, in count two possession of burglary tools. At the conclusion of the trial, the jury returned a verdict finding the defendant guilty of both counts as charged. The defendant was adjudged guilty and sentenced to one year in county jail on the first count and three years in state prison on the second count, the sentences to run concurrently.
We have examined the points on appeal raised by the defendant and find them to be without merit. However, the court, sua sponte, notes that each of the two counts in the information filed against the defendant involved a facet or phase of the same criminal transaction. In such a case, only one sentence may be imposed and that sentence should be imposed for the higher offense. Foster v. State, 286 So.2d 549 (Fla.1973); Kirkland v. State, 299 So.2d 54 (Fla.App.1974); Wyche v. State, 178 So.2d 875 (Fla.App.1965).
Accordingly, the sentence on Count I of the information is vacated and set aside. The judgment and sentence on Count II of the information is affirmed.
Affirmed as modified.