Opinion
No. 97-00436.
October 21, 1998.
Appeal from the Circuit Court for Lee County; Isaac Anderson, Jr., Judge.
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
Timothy J. McCann, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and William I. Munsey, Jr. Assistant Attorney General, Tampa, for Appellee.
Timothy J. McCann appeals his judgments and sentences for sexual battery with a deadly weapon, burglary, grand theft, and robbery with a deadly weapon. We affirm the judgments and sentences without discussion.
As the result of a negotiated plea, Mr. McCann received a 5-year sentence of imprisonment for grand theft concurrent with concurrent sentences of 34.9 years of imprisonment for the sexual battery with a deadly weapon, burglary, and armed robbery.
Although it is unlikely to affect his longer, upward departure sentences, Mr. McCann may have a valid double jeopardy claim concerning his convictions for grand theft, a third-degree felony, and armed robbery, a life felony. See Sirmons v. State, 634 So.2d 153 (Fla. 1994). We cannot resolve this issue based upon the record in this appeal. Accordingly, we affirm without prejudice to Mr. McCann filing a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging the existence of a double jeopardy issue.
Affirmed.
THREADGILL, A.C.J., ALTENBERND, J., and DANAHY, PAUL W., Jr., Senior Judge, concur.