Opinion
No. 77-667.
July 18, 1978.
Appeal from the Circuit Court, Dade County, Lenore C. Nesbitt, J.
Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender and Rory Stein, Legal Intern, for appellant.
Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before HENDRY, NATHAN and KEHOE, JJ.
Defendant Eugene Cooper was convicted of manslaughter, unlawful possession of a firearm while engaged in a criminal offense and carrying a concealed firearm.
Defendant appeals that part of the sentencing order which required that defendant not be eligible for parole for the mandatory minimum of three years. We agree and strike and delete that portion of the sentence since manslaughter is not one of the crimes set forth in Section 775.087(2), Florida Statutes (1977), prescribing a mandatory minimum sentence upon conviction for certain offenses when a firearm is used.
As to the defendant's other points on appeal, namely, first that the trial court erred in declaring a state's witness to be adverse, and second, that the trial court abused its discretion in permitting the co-prosecutor to testify for purposes of impeaching a state's witness in violation of the witness sequestration rule, we affirm the decision of the trial court on the authority of Bryan v. State, 45 Fla. 8, 34 So. 243 (1903); Romano v. Palazzo, 83 Fla. 243, 91 So. 115 (1922); Jones v. State, 273 So.2d 8 (Fla. 3d DCA 1973).
Affirmed in part, reversed in part.