Opinion
No. X-446.
December 2, 1975.
Appeal from the Circuit Court, Suwannee County, Arvel Drury, J.
Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
Appellant was convicted of all counts of a three count information. Count I charged robbery of one Catherine Kite. Count II charged an aggravated assault upon one Maude Severance and Count III charged use of a firearm during the commission of a felony. Appellant contends that all three charges were part of the same transaction or crime involving the robbery and that the sentences for the lesser of the three offenses cannot stand. We agree that Count III was a part of the same transaction or crime as Counts I and II but disagree that Count I was a part of the crime committed in Count II or that Count II part of the crime committed in Count I. Counts I and II were crimes upon different persons. See Robinson v. State, Fla.App. (1st), Case No. X-452, 323 So.2d 62, opinion filed September 23, 1975; and opinion on petition for rehearing granted therein filed this date.
We have considered the other point raised by appellant and find it to be without merit. See Bunch v. State, Fla.App. (1st), 303 So.2d 705 (1974); and Wilson v. State, Fla., 304 So.2d 119 (1974).
Affirmed in part and reversed in part and remanded with directions that the sentence below to 15 years imprisonment for use of a firearm during the commission of a felony be vacated.
RAWLS, Acting C.J., and McCORD, J., concur.
SMITH, J., concurs specially.
Although count three of the information in this case has the same infirmities that, in my view, invalidate one count of the information in another case against Robinson disposed of today on petition for rehearing, Robinson v. State, 323 So.2d 62 (Fla. App.1st, 1975, Case No. X-452), no attack was made upon the sufficiency of the information in this case. I therefore concur in the Court's opinion and decision.