FRANK LEROY SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reviewed two cases involving Frank Simmons. While affirming convictions and rulings on a motion to suppress in one case, the court reversed and remanded for resentencing in the other due to an improper sentence for aggravated assault with a firearm.
The court found no merit in the claims regarding the severance of offenses and the attempted murder conviction. It also found no error in the denial of the motion to suppress. However, the court held that the sentence for aggravated assault with a firearm was improper as it exceeded the statutory maximum for a third-degree felony.
[1] A trial court errs in imposing a sentence that exceeds the statutory maximum for the offense charged.
[2] Enhancement provisions for use of a deadly weapon cannot be applied when the use of a deadly weapon is a necessary element of the underlying charge.
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Join FLexlaw to unlock all legal intelligence“We find no merit in these claims, and affirm without discussion.”
Establishes the court's affirmation of the trial court's rulings on severance and attempted murder conviction.
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Join FLexlaw to unlock all legal intelligenceFrank Simmons was convicted of multiple offenses including car thefts, armed robberies, and attempted murder. He also pleaded no contest to charges fr…
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RYDER, Acting Chief Judge.
Frank Simmons was convicted of a number of offenses arising out of a crime spree in volving several ear thefts, armed robberies, attempted armed robberies and an attempted murder that occurred on July 7 and 8, 1993 (circuit court case number 93-09991). He also pleaded no contest to additional charges of armed robbery, grand theft of an automobile and aggravated assault with a firearm, resulting from an incident on June 13, 1993 (circuit court case number 93-14904). Simmons raises two issues in his appeal of case number 93-09991; he contends the trial court erred in denying his motion to sever certain offenses for trial and he challenges his conviction for attempted first degree murder.
We find no merit in these claims, and affirm without discussion. In case number 93-14904, Simmons asserts the court erred in denying his motion to suppress his confession and questions his sentence for aggravated assault with a firearm. We have discovered no error in the lower court’s ruling on the motion to suppress, and again affirm without discussion.
We agree, however, that Simmons was improperly sentenced and reverse on that issue.
The trial court sentenced Mr. Simmons to fifteen years’ imprisonment for aggravated assault with a firearm. This crime is a third degree felony. § 784.021(2), Fla.Stat. (1993). The enhancement provisions contained in section 775.087(1), Florida Statutes (1993), cannot be applied because use of a deadly weapon, here a firearm, is a necessary element of the charge. Rodriguez v. State, 650 So. 2d 1111, 1112 (Fla. 2d DCA 1995). The maximum sentence for a third degree felony is a term of imprisonment not exceeding five years. § 775.082(3)(d), Fla.Stat. (1993). The trial court erred in imposing a sentence that exceeded the statutory maximum. Accordingly, we reverse and remand for resentencing pursuant to this opinion. Mr. Simmons need not be present at resentencing.
Affirmed in part, reversed in part and remanded.
LAZZARA and WHATLEY, JJ., concur.