649 So. 2d 338 | Fla. Dist. Ct. App. | 1995
The defendant, Rodrick Wimberly, appeals from his convictions and sentences for second degree murder with a firearm and for unlawful possession of a firearm while engaged in a criminal offense.
We affirm the conviction and sentence for second degree murder; however, upon the State’s proper confession of error, we reverse the conviction and sentence for unlawful possession of a firearm while engaged in a criminal offense. Where the use of a weapon is the basis for enhancing the charge of second degree murder to a life felony, double jeopardy bars a separate conviction and sentence for misuse of the same firearm. Cleveland v. State, 587 So.2d 1145 (Fla.1991); Allen v. State, 643 So.2d 87 (Fla.3d DCA 1994); Joseph v. State, 625 So.2d 109 (Fla. 3d DCA 1993); Thomas v. State, 617 So.2d 1128 (Fla. 3d DCA 1993).
We find that the defendant’s remaining point lacks merit.
Accordingly, we affirm in part and reverse in part.