Opinion
No. 91-862.
March 24, 1992. Rehearing Denied June 9, 1992.
Appeal from the Circuit Court, Dade County, Roy T. Gelber, J.
Bennett H. Brummer, Public Defender, and Alan M. Sorota, Special Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Linda S. Katz, Asst. Atty. Gen., for appellee.
Before BARKDULL, NESBITT and LEVY, JJ.
The appellant was convicted and sentenced on the following charges: Count I: Sexual battery with a firearm, in violation of Section 794.011(2), Florida Statutes (1989) — sentenced to 25 years; Count II: Unlawful possession of a firearm while engaged in a criminal offense, in violation of Section 790.07, Florida Statutes (1989) — sentenced to 5 years; and Count III: Aggravated assault, in violation of Section 784.021(1)(a), Florida Statutes (1989) — sentenced to 15 years.
We find that the trial court erred in convicting and sentencing the defendant to both possession of a firearm in commission of a felony and aggravated assault with a firearm where the use of a firearm in the commission of a felony conviction encompasses solely the same assault with the gun. Cleveland v. State, 587 So.2d 1145 (Fla. 1991). Therefore, the convictions and sentences for unlawful possession of a firearm while engaged in a criminal offense, be and the same are hereby reversed and vacated. The remaining convictions and sentences are affirmed.
Affirmed as amended.