Opinion
No. 78-1283.
March 23, 1979.
Appeal from the Circuit Court, Lee County, Charles T. Carlton, J.
Jack O. Johnson, Public Defender, Bartow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
After a thorough review of the briefs and the record on appeal, we find that the appellant has failed to demonstrate reversible error, therefore, the judgments are affirmed.
One point on appeal does merit discussion and that is the propriety of the sentencing of appellant for both the second degree felony murder conviction and the underlying felony of robbery. In instances where, as here, a defendant is charged with felony murder but the underlying felony is a category (4) lesser included offense, under Brown v. State, 206 So.2d 377 (Fla. 1968), it is improper to impose a separate sentence on the lesser included felony in addition to the sentence on the felony murder conviction. Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978).
Accordingly, the sentence on the robbery conviction is vacated and set aside. Otherwise, the case is affirmed.
HOBSON, Acting C.J., and SCHEB, J., concur.