Nowlin v. State

DOWNEY, Judge.

From our consideration of the briefs and record in this cause we are not persuaded that the points raised by appellant demonstrate error. In any event, if there was any error it was harmless. Section 924.33, F.S., 1973; McDonnell v. State, Fla.App.1974, 292 So.2d 420.

Although not raised, we take note of the sentence as fundamental error. Appellant was convicted of robbery, use of a firearm in the commission of a felony and aggravated assault and sentenced to concurrent sentences of life imprisonment, IS years and 5 years, respectively. Since all three charges were but facets and the same transaction, appellant should have been sentenced on the robbery count only. Cone v. State, Fla.1973, 285 So.2d 12. Accordingly, the sentences for use of a firearm in the commission of a felony and aggravated assault are vacated. In all other respects the judgment and sentence appealed from is affirmed.

Affirmed in part and reversed in part.

MAGER, J., concurs. ALDERMAN, JAMES E., Associate Judge, dissents, with opinion.