Opinion
No. T-61.
January 24, 1974.
Appeal from the Circuit Court for Volusia County, J. Robert Durden, J.
Richard W. Ervin, III, Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
Appellant seeks reversal of his conviction and two consecutive ten-year sentences imposed after being found guilty by a jury on charges of assault with intent to commit a felony and use of a firearm while attempting to commit a felony.
We have carefully reviewed the merits of the points of error assigned in this appeal, and conclude that appellant has failed to demonstrate the reversible error was committed during the trial proceedings. Accordingly, the judgments and convictions herein are affirmed.
However, in light of the Florida Supreme Court case of Cone and Sanders v. State, 285 So.2d 12, Opinion filed March 7, 1973, and petition for rehearing denied on December 4, 1973, we must remand this cause for elimination of the ten-year consecutive sentence imposed for use of a firearm while attempting to commit a felony. The record on appeal clearly illustrates that the use of a firearm occurred during the assault with intent to commit a felony, and hence the two crimes charged were but a facet or phase of the same criminal act or transaction and only one sentence for the highest offense charged may be imposed.
Affirmed in part and remanded for correction of sentences by eliminating the part of the sentence imposed for use of a firearm while attempting to commit a felony.
It is so ordered.
SPECTOR, Acting C.J., and JOHNSON and BOYER, JJ., concur.