GARY GAITHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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OTT, Chief Judge.
Count 3 of a five-count information alleged that appellant carried a concealed .25 caliber automatic pistol. Count 5 alleged that while committing a felony appellant carried a concealed firearm, and the information described the same firearm as that described in count 3. Appellant was convicted and sentenced for both crimes.
Because the charging language requires proof of each and every element of count 3 for conviction under count 5, count 3 is a “category 2” lesser-included offense within count 5. See Fla.Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, p. 261-62. Principles of double jeopardy preclude convictions and sentences for both offenses. Bell v. State, 437 So. 2d 1057 (Fla.1983).
Accordingly, appellant’s conviction and sentence for carrying a concealed weapon are REVERSED.
HOBSON and RYDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
O'Hara v. State, 448 So. 2d 524 (Fla. 5th DCA 1984)…2d 336 (Fla. 5th DCA 1983). . Ubi eadem ratio ibi; idem jus; et de simili-bus idem est judicium. Where there is the same reason, there is the same law; and where there are similar situations, the judgment is the same. . See also Gaither v. State, 436 So. 2d 289 (Fla. 2d DCA 1983). . See cases cited in n. 8, supra. See also Gaither v. State, 436 So. 2d 289 (Fla. 2d DCA 1983).…1 / 2
Authorities Cited
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)