LYMAN BRUTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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When a criminal transaction involves multiple offenses, only one sentence may be imposed for the higher offense.
Defendant was charged with attempted breaking and entering and possession of burglary tools, found guilty on both counts, and sentenced concurrently. …
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PER CURIAM.
Appellant-defendant, Lyman Bruton, was charged by information with, in count one, attempted breaking and entering of an automobile with intent to commit larceny and, in count two possession of burglary tools. At the conclusion of the trial, the jury returned a verdict finding the defendant guilty of both counts as charged. The defendant was adjudged guilty and sentenced to one year in county jail on the first count and three years in state prison on the second count, the sentences to run concurrently.
We have examined the points on appeal raised by the defendant and find them to be without merit. However, the court, sua sponte, notes that each of the two counts in the information filed against the defendant involved a facet or phase of the same criminal transaction. In such a case, only one sentence may be imposed and that sentence should be imposed for the higher offense. Foster v. State, 286 So. 2d 549 (Fla.1973); Kirkland v. State, 299 So. 2d 54 (Fla.App.1974); Wyche v. State, 178 So. 2d 875 (Fla.App.1965).
Accordingly, the sentence on Count I of the information is vacated and set aside. The judgment and sentence on Count II of the information is affirmed.
Affirmed as modified.
WALDEN, CROSS and MAGER, JJ., concur.
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Borges v. State, 394 So. 2d 1046 (Fla. 4th DCA 1981)…ut with a dangerous weapon, but that count did not set forth that the burglar was a convicted felon nor did it suggest that the weapon used was concealed. As to the single transaction rule, we are not unaware of our own decision in Bruton v. State, 326 So. 2d 186 (Fla. 4th DCA 1975) in which we sua sponte raised and held the possession of burglary tools and the attempted breaking and entering of an automobile to involve a facet or phase of the same criminal transaction for which only one sentence could be im…
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Muszynski v. State, 392 So. 2d 63 (Fla. 5th DCA 1981)…AUKSCH, C. J., and COBB, J., concur. . Sanford v. Rubin, 237 So. 2d 134 (Fla.1970); Bashans v. State, 388 So. 2d 1303 (Fla. 1st DCA 1980). . Austin v. State, 40 So. 2d 896 (Fla.1949). . Foster v. State, 286 So. 2d 549 (Fla.1973); Bruton v. State, 326 So. 2d 186 (Fla. 4th DCA 1975); Brown v. State, 317 So. 2d 145 (Fla.2d DCA 1975). . See Brown v. State, 206 So. 2d 377 (Fla.1968).…
Authorities Cited
- Foster v. State, 286 So. 2d 549 (Fla. 1973)
- Edmond Wyche v. State, 178 So. 2d 875 (Fla. 2d DCA 1965)
- Kirkland v. State, 299 So. 2d 54 (Fla. 1st DCA 1974)