Opinion
No. 75-1792.
July 21, 1976.
Appeal from the Circuit Court, Lake County, W. Troy Hall, Jr., J.
Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was charged by a one-count information with the single offense of armed robbery. He pled guilty to two lesser included offenses: (1) assault with intent to commit a felony, to wit: robbery, and (2) possession of a firearm while in the commission of a felony. The trial court accepted the plea, adjudged appellant guilty of both offenses, and sentenced him to serve 15 years in the state prison.
Due to the fact that the appellant was charged with the commission of only one offense, it was error for the trial court to adjudicate the appellate guilty of the second offense of possession of a firearm in the commission of a felony. However, even if one were to assume that the trial court did have such authority, the offenses arose out of a single transaction. Therefore, only one sentence would be appropriate pursuant to the holding in Cone v. State, Fla. 1973, 28 So.2d 12.
Accordingly, all reference in the judgment and sentence to the offense of possession of a firearm in the commission of a felony must be stricken. Inasmuch as only one sentence of 15 years was actually imposed for the offense of assault with intent to commit robbery, and it was within the maximum sentence allowable under the applicable statute, it is left undisturbed.
As amended, the judgment and sentence are affirmed and the cause is remanded to the trial court with directions to correct the judgment and sentence consistent with this opinion.
AFFIRMED and REMANDED with directions.
McNULTY, C.J., and GRIMES, J., concur.