Williams v. State , 397 So. 2d 438 ( 1981 )

397 So.2d 438 (1981)

Sheldon WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee.

No. 79-1136.

District Court of Appeal of Florida, Third District.

April 28, 1981.

Bennett H. Brummer, Public Defender and Charlene Carres, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before HUBBART, C.J., and SCHWARTZ and BASKIN, JJ.

PER CURIAM.

The defendant Sheldon Williams appeals a judgment of conviction and concurrent prison sentences followed by probation, entered upon a jury verdict after trial, for the crimes of: (1) attempted robbery with a firearm [§§ 812.13(1), (2)(a), 777.04(1), (4)(b), Fla. Stat. (1979)]; and (2) unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm [§ 790.07(2), Fla. Stat. (1979)] in the Circuit Court for the Eleventh Judicial Circuit of Florida.

In our view, the crimes for which the defendant stands convicted and sentenced are precisely identical in essential elements; each count, in effect, states the same crime. Although the convictions for both crimes must be affirmed because the defendant failed to attack the information below through a motion to dismiss and/or elect, see e.g., Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980), and cases collected, the sentence imposed upon the firearm conviction — the less serious of the two crimes herein — must fall on double jeopardy grounds as a fundamental error which may be raised for the first time on appeal. See e.g., Davis v. State, 392 So.2d 947 (Fla.3d DCA 1981), and cases collected. We find no merit, however, in the defendant's remaining point on appeal. See Spencer v. State, 133 So.2d 729, 731 (Fla. 1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962).

The judgment of conviction and sentence for the crime of attempted robbery with a firearm is affirmed. The judgment of conviction for the crime of unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm, is affirmed; the sentence imposed for the crime of unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm, is reversed.

Affirmed in part; reversed in part.