Foster v. State, 409 So. 2d 1132

DELL, Judge.

Appellant was convicted of attempted first degree murder of Joe Rutkowski with a firearm (Count I), robbery with a firearm of Joe Rutkowski (Count II), aggravated battery with a firearm of Edward Thomas (Count IV), attempted robbery with a firearm of Edward Thomas (Count V), possession of a firearm in commission of attempted first degree murder (Count VI), and possession of a firearm in commission of aggravated battery (Count VII). He was adjudged guilty of each of those offenses, and was sentenced to serve 25 years in prison on Count I with a mandatory three year minimum. Three consecutive three year mandatory prison terms were imposed for appellant’s convictions of Counts II, IV and V for a total of a twelve year mandatory prison term. Five year prison sentences were imposed for Counts VI and VII, each to run concurrent. Appellant contends that Counts VI and VII are lesser included offenses of Counts I and IV and thus his conviction for Counts VI and VII and the five year sentences should be vacated and set aside.

Appellee concedes that the sentences which appellant received under Counts VI and VII (display of a firearm during the commission of a felony) should be vacated, but contends that the convictions under Counts VI and VII should stand. We agree. See, State v. Hegstrom, 401 So.2d 1343 (Fla.1981); State v. Monroe, 406 So.2d 1115 (Fla.1981).

AFFIRMED IN PART; REVERSED IN PART with instructions to the trial court to vacate the sentences for possession of a firearm during an aggravated battery and possession of a firearm during the course of attempted murder.

ANSTEAD and HERSEY, JJ., concur.

Case Details

Case Name: Foster v. State

Court Name: District Court of Appeal of Florida

Date Published: Feb 10, 1982

Citations: 409 So. 2d 1132; 1982 Fla. App. LEXIS 19202; No. 81-679

Docket Number: No. 81-679

Court Abbreviation: Fla. Dist. Ct. App.