District Court of Appeal of Florida, Second District.
James A. Gardner, Public Defender, Sarasota, Harold H. Moore, Asst. Public Defender, and Steven H. Denman, Legal Intern, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
McNULTY, Chief Judge.
Following pleas of nolo contendere, and pursuant to negotiations, appellant was sentenced to a general twenty year sentence for convictions of robbery, assault with intent to commit first degree murder with firearms and use of a firearm while committing a felony.
The sentencing insofar as it was for use of a firearm in commission of a felony was improper, being part of the same transaction as the robbery.[1]
The general twenty year sentence is within the maximum for the aggregate of the remaining two crimes for which appellant was adjudicated guilty, the maximum sentence for robbery being life and for assault with intent to commit murder being fifteen years imprisonment. However, the very imposition of a general sentence presents various potential problems. These problems were discussed in Benson v. United States[2] which vacated a general sentence within the maximum of the crimes for which appellant was convicted and remanded for resentencing. Although this court has previously held a general *582 sentence involving less than the maximum sentence to be harmless error,[3] we are now persuaded by the reasoning in Benson, supra, that the error is not harmless.
Therefore, the convictions are affirmed but the general twenty year sentence is hereby vacated. The case is remanded for resentencing, apportioning the negotiated twenty year sentence between the robbery and assault with intent to commit murder convictions.
HOBSON and GRIMES, JJ., concur.
[1] Cone v. State (Fla. 1973), 285 So. 2d 12.
[2] (5th Cir.1963), 332 F.2d 288.
[3] See Warncke v. State (Fla.App.2d, 1971), 247 So. 2d 27.
