Opinion
No. 78-2070.
June 30, 1981.
Appeal from the Circuit Court, Dade County, Alan R. Schwartz, J.
Bennett H. Brummer, Public Defender and Thomas H. Connors, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before HENDRY, NESBITT and FERGUSON, JJ.
The defendant's conviction for unlawful possession of a firearm while attempting to commit a felony, section 790.07, Florida Statutes (1977), is affirmed. Although the elements of this crime are the same as the elements constituting the crime of attempted robbery with a firearm, sections 812.13(1), (2)(a), and 777.04(1), Florida Statutes (1977), for which defendant was also convicted, the error was not preserved for appellate review since defendant failed to attack the information below through a motion to elect and/or dismiss. However, the sentence imposed upon the less serious of the two crimes — the firearm conviction — is reversed on double jeopardy grounds as a fundamental error which may be raised for the first time on appeal. Williams v. State, 397 So.2d 438 (Fla. 3d DCA 1981) (1981).
Denial of the defendant's motion to suppress is affirmed on the authority of State v. Webb, 398 So.2d 820 (Fla. 1981).
Affirmed in part; reversed in part.