Opinion
No. 94-01047.
June 16, 1995.
Appeal from the Circuit Court, Polk County, Helio Gomez, Associate (Senior) Judge.
James Marion Moorman, Public Defender, and John C. Fisher, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.
Appellant seeks review of the judgments and sentences entered by the trial court after he was convicted by a jury of burglary, grand theft and resisting an officer without violence. He was sentenced as a habitual offender to ten years on the burglary offense and five years on the grand theft, with the sentences to run consecutively. He was sentenced to time served on the other offense. We affirm the judgments but remand to the trial court to make the sentences run concurrently.
Appellant argues three points on this appeal. He claims the trial court erred in denying a motion for judgment of acquittal, in giving the jury instruction on unexplained possession of stolen property, and in running the sentences consecutively. We find merit in the sentencing issue only. Appellant was convicted of burglary of a clothing store and the theft of items from that store. The burglary and grand theft arose from the same criminal episode. Appellant correctly asserts he cannot be sentenced to consecutive habitual offender sentences when both crimes result from one criminal episode. Hale v. State, 630 So.2d 521 (Fla. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994).
We remand to the trial court to correct appellant's sentence by imposing concurrent sentences.
RYDER, A.C.J., and SCHOONOVER, J., concur.