Opinion
No. 86-693.
August 8, 1989.
An Appeal from the Circuit Court for Dade County; Arthur Maginnis, Judge.
Bennett H. Brummer, Public Defender, and N. Joseph Durant, Jr., Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Patricia Ann Ash, Asst. Atty. Gen., for appellee.
Before NESBITT, JORGENSON and GERSTEN, JJ.
We vacate the defendant's conviction of unlawful possession of a firearm while engaged in a criminal offense, § 790.07, Fla. Stat. (1985), as violative of the double jeopardy provisions of the state and federal constitutions because he had already been charged with murder in the first-degree and found guilty of manslaughter with a firearm as a lesser included offense of the first-degree murder charge. Carawan v. State, 515 So.2d 161 (Fla. 1987); Gonzalez v. State, 543 So.2d 386 (Fla. 3d DCA 1989). Nonetheless, we find that the defendant was otherwise properly sentenced having elected as he did to be sentenced outside the strictures of the sentencing guidelines for this offense which occurred before the guidelines' effective date. Newsome v. State, 473 So.2d 709 (Fla. 2d DCA 1985).
For the foregoing reasons, the defendant's conviction for unlawful possession of a firearm is reversed. In all other respects, his conviction and sentence are affirmed.