District Court of Appeal of Florida, First District.
Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee.
McCORD, Judge.
A two count indictment was filed against appellant charging him in the first count with the crime of robbery and in the second count with the use of a firearm in the commission of a felony (robbery). Both crimes were part of the same transaction or act the robbery of Gus Williams trading and doing business as Singleton's Barbecue in Duval County. Appellant was found guilty of both counts and the trial court imposed a sentence of 25 years imprisonment on the first count, and a 10 year prison sentence on the second count, the two sentences to run concurrently. The sentence on the second count violates the single transaction rule and cannot stand. See Cone v. State, Fla., 285 So. 2d 12 (1973). Appellant can be sentenced only for the highest offense charged of which he was convicted robbery. This court can and does amend the sentence rendering it unnecessary to return the appellant to the trial court for resentencing. See Dawson v. State, 266 So. 2d 116 (1 Fla.App., 1972). It is therefore ordered that the 10 year sentence for use of a firearm during the commission of a felony is vacated. The sentence of 25 years imprisonment for the crime of robbery is affirmed.
RAWLS, C.J., and JOHNSON, J., concur.
