Roberts v. State

400 So. 2d 475 | Fla. Dist. Ct. App. | 1981

Lead Opinion

ORFINGER, Judge.

Appellant’s contention that he could not be sentenced separately for one count of shooting into an occupied vehicle and two counts of aggravated battery all arising out of the same incident lacks merit. The battery counts involved different persons, and one need not commit an aggravated battery in order to commit the offense of shooting into an occupied vehicle. See Barlow v. State, 255 So.2d 559 (Fla. 1st DCA 1971). Neither is the aggravated battery included in the offense of shooting into the vehicle such as would make it a Brown¹ category (4) lesser included offense.

Appellant’s contention that he could not be given a split sentence pursuant to section 948.01(4), Florida Statutes, is likewise unavailing. This court has held that Villery v. Florida Parole and Probation Commission, 396 So.2d 1107, No. 57,935 (Fla. 1980) [1980 F.L.W. 554], was not intended to apply to split sentences. Hollingsworth v. State, 394 So.2d 580 (Fla. 5th DCA 1981).

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

1 . Brown v. State, 206 So.2d 377 (Fla.1968).

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Rehearing

ON REHEARING GRANTED

ORFINGER, Judge.

Subsequent to the filing of the original opinion in this case, the Supreme Court issued its revised opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) and the court has clearly applied the principles of that opinion to split sentences under section 948.01(4), Florida Statutes (1979).

The order entered below denying relief to appellant under Florida Rule of Criminal Procedure 3.850 is reversed insofar as it denied correction of appellant’s split sentence of five years of incarceration followed by ten years of probation, and the case is remanded to the trial court for resentencing in the light of Villery. Except as noted, we adhere to our original opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.