Stricklen v. State , 332 So. 2d 119 ( 1976 )

332 So. 2d 119 (1976)

James O. STRICKLEN, Appellant (Defendant),
v.
STATE of Florida, Appellee (State).

No. AA-317.

District Court of Appeal of Florida, First District.

May 12, 1976. Amended on Rehearing June 10, 1976.

Richard W. Ervin, III, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.

MILLS, Judge.

Stricklen was charged with, and convicted by a jury of manslaughter by culpable negligence, and driving an automobile while intoxicated resulting in the death of Cain. He appeals from the judgment of conviction and concurrent five-year sentences on each offense. Stricklen contends that the trial court erred in imposing the two sentences, because there was only one homicide. We agree. Phillips v. State, 289 So. 2d 769 (Fla.App.2d, 1974). Only one sentence is appropriate where there is only one homicide.

Reversed and remanded for the entry of but one sentence.

BOYER, C.J., and McCORD, J., concur.

ON PETITION FOR REHEARING

MILLS, Judge.

The opinion of the Court which was rendered on 12 May 1976 is amended by adding at the end thereof: It is not necessary for the defendant to appear in court at the time of resentencing.

BOYER, C.J., and McCORD, J., concur.