In Raby v. State, 92 Nev. 30, 544 P.2d 895 (1976), this court, relying on Woofter, vacated five of Raby's ten convictions that were improperly based on Raby's use of a firearm in the commission of five robberies.Summary of this case from Nevada Dep't Prisons v. Bowen
January 23, 1976
Appeal from the Eighth Judicial District Court, Clark County; Paul S. Goldman, J.
Oshins, Brown Singer, Chartered, and A. Bill Maupin, of Las Vegas, for Appellant.
George E. Holt, District Attorney, H. Leon Simon, and Rimantas A. Rukstele, Deputy District Attorneys, Clark County, for Respondent.
The information charged Raby with the commission of ten separate crimes — five robberies on the same day and at the same place, and the use of a firearm in the commission of each robbery. The jury found him guilty of ten separate offenses and returned ten verdicts. Judgment of conviction was entered upon each verdict. He was sentenced to serve concurrent terms of ten years on each robbery conviction, and concurrent terms of ten years on each "use of firearm in the commission of a crime" conviction, with the provision, however, that the first ten-year sentence for use of a firearm in the commission of a crime was to run consecutively to the first ten-year sentence for robbery.
Since the use of a firearm or other deadly weapon in the commission of a crime [NRS 193.165] is not a separate criminal offense [Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975)], the five convictions therefor must be and hereby are annulled. However, since the evidence is overwhelming that Raby did, indeed, commit the five robberies as charged, and that he used a firearm in the commission of each robbery, we shall treat the ten-year consecutive sentence imposed for using such firearm as the enhanced penalty mandated by NRS 193.165.
Consequently, Raby shall serve concurrent terms of ten years on each robbery conviction, and a consecutive term of ten years for using a firearm in the commission of the robberies.
Other assigned errors are without merit.