concurring in part and dissenting in part.
I fully concur in the decisions of my colleagues reversing Calvert's conviction for attempted robbery, affirming his conviction for possession of a firearm by a serious violent felon and affirming his sentences. As to their conclusion that Calvert's convictions for possession of a firearm by a serious violent felon and possession of a sawed-off shotgun violate double jeopardy provisions, however, I respectfully dissent.
Although the State agrees with Calvert that a double jeopardy violation occurred, I think in doing so, it misconstrues the actual evidence test set forth by our Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999). In Richardson, the Court held that the double jeopardy clause is violated if there is "a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 58.
Then, the Court in Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002) held "[UJnder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense."
In Ho v. State, 725 N.E.2d 988, 992 (Ind.Ct.App.2000), we confronted a double jeopardy claim arising from a defendant's convictions for robbery and carrying a handgun without a license. We concluded that double jeopardy protections were not violated because "distinct evidentiary facts were used to prove that Ho committed robbery while armed with a handgun, while a lack of evidentiary facts was used to prove that Ho did not have a license to carry that handgun." Id. at 993. We held that Ho failed to demonstrate "a reasonable possibility that the same evidentiary facts may have been used to establish the essential elements of each challenged offense." Id. In Ho, Ho was convicted of both committing robbery while armed with a handgun and possession of an unlicensed handgun. The fact that Ho did not have a license for the handgun was irrelevant for purposes of the robbery conviction, and the fact that Ho committed a robbery *646while armed was irrelevant to the handgun conviction.
Similarly, in Mickens v. State, 742 N.E.2d 927, 931 (Ind.2001), our Supreme Court noted that carrying the gun along the street was one crime and using it was another. The court held that the Richardson actual evidence test was not met and rejected Mickens' double jeopardy claim.
Here, Calvert, a conceded serious violent felon, was convicted of possession of a firearm; the fact that the firearm was a sawed-off shotgun was of no moment to this conviction. He was also convicted of the separate offense of possession of a sawed-off shotgun; the fact that he was a serious violent felon was of no moment to this conviction. When Calvert, a serious violent felon, possessed a gun, he committed one crime; when he possessed a gun that was illegal for anyone to possess, he committed a second erime.
I would affirm the Calvert's convictions for possession of a firearm by a serious violent felon and possession of a sawed-off shotgun.