Pastor v. State, 536 So. 2d 356

PER CURIAM.

Roberto Pastor appeals the denial of his motion pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief. Pastor was convicted of two offenses: attempted first degree murder with a deadly weapon; and unlawful possession of a deadly weapon while engaged in a criminal offense. He received a seventeen year sentence under count one, and a concurrent sentence of five years under count two. Because Pastor‘s possession and display of a firearm arose from the same actions upon which his conviction for attempted first degree murder with a deadly weapon is based, we hold that Pastor‘s conviction on that count violates the double jeopardy clauses of the state and federal constitutions. Hall v. State, 517 So.2d 678 (Fla. 1988); Carawan v. State, 515 So.2d 161 (Fla. 1987); Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988). We therefore reverse the trial court‘s order denying relief and remand with directions to vacate the conviction and sentence imposed for count two and to recalculate the sentence pursuant to the guidelines.

Pastor‘s remaining points lack merit.

REVERSED AND REMANDED.

Case Details

Case Name: Pastor v. State

Court Name: District Court of Appeal of Florida

Date Published: Dec 27, 1988

Citations: 536 So. 2d 356; 1988 WL 138534; 88-2515

Docket Number: 88-2515

Court Abbreviation: Fla. Dist. Ct. App.