Opinion
No. 74-419.
May 23, 1975. Rehearing Denied June 12, 1975.
Appeal from the Orange County Circuit Court, Peter M. deManio, J.
Richard L. Jorandby, Public Defender, and Bruce J. Daniels, Sp. Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was convicted of both counts of a two-count information charging (1) unlawfully shooting a firearm within an occupied building, § 790.19 F.S., and (2) possession of a firearm by a convicted felon, § 790.23 F.S. On October 11, 1972 he was sentenced to serve 15 years on the first count and a consecutive 5-year term on the second count. Some 18 months later he filed a motion to vacate which, among other things, questioned the legality of the sentence on Count II. This appeal is from the denial of that motion.
Although appellant could have been guilty of Count II (possession of a firearm by a convicted felon) without having committed or been found guilty of Count I (unlawfully shooting a firearm within an occupied building), the converse of this is not true. Thus, since both of these offenses arose out of the same transaction, and the offense of shooting a firearm within an occupied building necessarily required that appellant, a convicted felon, have the firearm in his possession or control, appellant was subject only to a single sentence for the higher or more serious offense. Martin v. State, Fla.App. 1971, 251 So.2d 283; Lietch v. State, Fla.App. 1971, 248 So.2d 203.
The other grounds raised in the motion to vacate are without merit. The adjudications of guilt as to both offenses are affirmed, but the cause is remanded to the trial court with directions to vacate and set aside the consecutive 5-year sentence on Count II (possession of a firearm by a convicted felon).
Remanded with instructions.
WALDEN and MAGER, JJ., concur.