No. 87-0885 | Fla. Dist. Ct. App. | Jul 12, 1989
Lead Opinion
ON REHEARING
We grant appellant’s motion for rehearing, and substitute the following opinion on rehearing:
Appellant’s convictions for both armed robbery and possession of a firearm during a felony constitute dual punishments for the same criminal offense pursuant to Hall v. State, 517 So. 2d 678" date_filed="1988-01-07" court="Fla." case_name="Hall v. State">517 So.2d 678 (Fla.1988). Thus, we reverse the appellant’s conviction and sentence for possession of a firearm during the commission of a felony and remand the cause to the trial court for further proceedings consistent with this opinion.
Our decision in the instant case is not affected by this court’s recent decision in Love v. State, 532 So. 2d 1133" date_filed="1988-10-26" court="Fla. Dist. Ct. App." case_name="Love v. State">532 So.2d 1133 (Fla. 4th DCA 1988). In Love, on appeal after remand, this court declined to apply Hall v. State, 517 So. 2d 678" date_filed="1988-01-07" court="Fla." case_name="Hall v. State">517 So.2d 678, retroactively to Love’s dual conviction and sentence for armed robbery and possession of a firearm during a felony. However, Hall was decided after Love’s conviction was affirmed but while Love was on remand to the trial court for resentencing on other grounds. In contrast, in the instant appeal, appellant’s first direct appeal was pending before this court at the time Hall v. State was decided by the Florida Supreme Court. Thus, there is no question of retroactive application because appellant’s conviction was not final by appeal at the time Hall v. State was decided. Smith v. State, 496 So. 2d 983" date_filed="1986-11-04" court="Fla. Dist. Ct. App." case_name="Smith v. State">496 So.2d 983 (Fla. 3d DCA 1986).
REVERSED AND REMANDED.
Concurrence Opinion
concurring specially.
Because the issue discussed in the majority opinion was raised for the first time in the motion for rehearing, we might ordinarily have denied the motion for rehearing and allowed the appellant to raise the issue in a motion for post-conviction relief. However, the state has filed no response to the motion, apparently indicating a candid and timesaving agreement with its contention. It also appears that the error is a fundamental one and, finally, it appears that even by striking the conviction the sentencing guidelines points will remain the same. Hence, out of consideration of judicial efficiency, I concur in the grant of rehearing.