Taylor v. State

WENTWORTH, Judge.

These appeals challenge the imposition of two five year sentences for aggravated assault, to be served concurrently with sentences for armed robbery. The two cases have been consolidated.

In case 79-69-CF, arising out of an incident which occurred on February 13, 1979, appellant was convicted and sentenced to twenty-five years for armed robbery as well as five years for aggravated assault, the five year sentence to be served concurrently with the twenty-five year sentence. In case 79-97-CF, arising out of an incident occurring on February 14, 1979, appellant was convicted and sentenced to fifteen years for armed robbery as well as five years for aggravated assault, the five year sentence to be served concurrently with the fifteen year sentence. The sentences in 79-97-CF were to be served consecutive to the sentences in 79-69-CF.

In each of the two incidents, appellant pointed a pistol at convenience store employees and demanded money. In each case, the aggravated assault of the employee was a lesser included offense of the armed robbery, since the assault was accomplished with a deadly weapon. Morrison v. State, 259 So.2d 502 (Fla.3d DCA 1972). The court erred in imposing the five year concurrent sentences for aggravated assault. Douglas v. State, 349 So.2d 694 (Fla. 1st DCA 1977).

The sentences for aggravated assault are therefore vacated and the causes remanded for disposition consistent herewith.

ERVIN and SHAW, JJ., concur.