Opinion
No. 90-0132.
January 30, 1991.
Appeal from the Circuit Court, Palm Beach County, Marvin U. Mounts, Jr., J.
Carol S. Haughwout of Tierney Haughwout, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.
George Wallace seeks review of his judgment and conviction for first degree murder, attempted robbery with a firearm, possession of a firearm during the commission of a felony, and shooting into an occupied motor vehicle.
We find no error as to the trial court's denial of appellant's motion to suppress his confession, nor in the failure to grant a judgment of acquittal as to the first two counts. Accordingly, we affirm on those points.
However, we find there is merit to appellant's contention that he should not have been convicted for possession of a firearm during the commission of a felony, in that the elements of this offense were all contained within the attempted robbery count. In that these crimes occurred prior to the effective date of the legislature's override of Carawan v. State, 515 So.2d 161 (Fla. 1987), we find there is merit to appellant's argument and accordingly, we reverse the conviction and sentence on this count. Appellee's argument, that a portion of appellant's defense would suggest that there might have been two guns involved, is not persuasive. Even if the two-gun theory were assumed to be accurate, the only underlying felony which would support the charge of possession of a firearm during the commission of a felony is the attempted robbery. Clearly, even under appellant's two-gun defense, only one gun would have been involved in the commission of the attempted robbery. Since the greater charge includes all the elements of the lesser charge, appellant cannot properly be convicted and sentenced for both.
REVERSED AND REMANDED.
ANSTEAD, LETTS and POLEN, JJ., concur.