Hancock v. State

Full title: WILLIAM HOWARD HANCOCK, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: May 3, 1990

559 So. 2d 1307 (Fla. Dist. Ct. App. 1990)

Opinion

No. 89-616.

May 3, 1990.

Appeal from the Circuit Court for Seminole County; C. Vernon Mize, Jr., Judge.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

A violation of constitutional double jeopardy rights being fundamental error, State v. Johnson, 483 So.2d 420 (Fla. 1986), we reverse and vacate the defendant's conviction, under Count VII of case number G88-1597-CFA in the criminal division of the Circuit Court for Seminole County, Florida, of the offense of use of a firearm in the commission of a felony, section 790.07(2), Florida Statutes. See Hall v. State, 517 So.2d 678 (Fla. 1988); Kelly v. State, 552 So.2d 1140 (Fla. 5th DCA 1989); Kelly v. State, 552 So.2d 206 (Fla. 5th DCA 1989); Curry v. State, 539 So.2d 573 (Fla. 5th DCA 1989); Brown v. State, 538 So.2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So.2d 1366 (Fla. 1989); Crayton v. State, 536 So.2d 399 (Fla. 5th DCA 1989); Willingham v. State, 535 So.2d 718 (Fla. 5th DCA 1989); Neal v. State, 527 So.2d 966 (Fla. 5th DCA 1988); Cardwell v. State, 525 So.2d 1025 (Fla. 5th DCA 1988); and Wright v. State, 519 So.2d 1157 (Fla. 5th DCA 1988).

We also vacate the probation order relating to the vacated conviction but do not remand for resentencing because the vacated conviction does not sufficiently change the defendant's scoresheet as to affect the recommended guidelines sentence. The defendant's convictions and sentences are otherwise affirmed.

AFFIRMED in part; REVERSED in part.

GOSHORN and PETERSON, JJ., concur.