ARCELIO HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court vacated convictions for aggravated assault and unlawful possession of a short-barreled shotgun because the assault facts were part of the continuous robbery transaction and there was no evidence of possession during the robbery, and struck mandatory minimum sentences not authorized by statute.
Convictions for aggravated assault and possession of a short-barreled shotgun must be vacated because the assault constituted part of the continuous robbery transaction and there was no evidence of possession during the robbery.
[1] When assault facts constitute a continuous series of acts with robbery under the statutory definition, the assault conviction must be vacated as a lesser-included offense…
[2] Possession of a firearm during a robbery cannot be established without record evidence of actual or constructive possession during the robbery itself.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the facts supporting the act charged, i.e., the co-defendant jammed the edge of the shotgun into the victim's head immediately following the taking, constituted a continuous series of acts and events under the statutory definition of robbery”
State's concession regarding why aggravated assault conviction should be vacated
Hernandez was convicted of robbery, aggravated assault, and possession of a short-barreled shotgun. The assault involved the co-defendant jamming the …
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PER CURIAM.
The State correctly concedes that “[t]he conviction and sentence for aggravated assault should be vacated because the facts supporting the act charged, i.e., the co-defendant jammed the edge of the shotgun into the victim’s head immediately following the taking, constituted a continuous series of acts and events under the statutory definition of robbery”. See Section 812.13(3)(b), Florida Statutes (1987).
The State further agrees that “the other possession of a short-barreled shotgun conviction as charged in Count VI should be vacated because there was no record evidence establishing the defendant had either actual or constructive possession of the shotgun during the robbery”.
Lastly, the State correctly concedes that “the three-year minimum mandatory sentences for possession of a short-barreled shotgun and carrying a concealed firearm are not described under Section 775.087(2), Florida Statutes (1987) and, therefore, should be stricken from the sentencing orders”.
Accordingly, each of the convictions and sentences specifically referred to above must be reversed for the reasons stated. In all other respects, however, the trial court is affirmed.
Because the vacating and reversing of some of the offenses of which the defendant was convicted has an effect on the other sentences that the defendant received in connection with the offenses that we are affirming, this cause must also be remanded so that the trial court can prepare a new scoresheet, in light of the foregoing, and properly sentence the defendant for those convictions which are being affirmed herein.
Affirmed in part, reversed in part and remanded with directions.