Opinion
No. 90-2631.
April 18, 1991.
Appeal from the Circuit Court, Volusia County, Gayle S. Graziano, J.
Ralph Charles Thomas, East Palatka, pro se.
No appearance for appellee.
Thomas appeals summary denial of his Motion for Post-Conviction Relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm but certify a conflict with Graham v. State, 559 So.2d 410 (Fla.2d DCA 1990), on the issue of whether convictions for both armed robbery with a firearm and use of a firearm while committing or attempting to commit a felony constitute a violation of the prohibitions against double jeopardy. We certified the conflict earlier in Cleveland v. State, 574 So.2d 289 (Fla. 5th DCA 1991).
The trial court denied Thomas' motion on the issue of double jeopardy because it had imposed a sentence only on the robbery offense. Double jeopardy results from subjecting a defendant to more than one conviction for the same offense and the mere absence of a sentence for the surplus conviction does not cure the problem. Ferenc v. State, 563 So.2d 707 (Fla. 1st DCA 1990). While the trial court may have used the incorrect basis for the decision, nevertheless it was correct based upon Cleveland. We find no merit in the other points raised by Thomas.
AFFIRMED; conflict certified.
COBB and W. SHARP, JJ., concur.