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608 So. 2d 897

Mack v. State

District Court of Appeal of Florida

Decided November 10, 1992

District Court of Appeal of Florida · decided 1992-11-10

Cited by 1 later decisions — most recently January 2001

Key passage — most relied on by later courts

“1. The trial court erred in failing to conduct an adequate Nelson inquiry to sufficiently explore the defendant’s allegations of incompetency of and conflict with court-appointed counsel and failed to advise defendant of his right to self-representation; 2. The trial court erred in failing to grant a continuance; 3. The trial court erred in failing to conduct a hearing to determine whether Petitioner’s post-arrest custodial statement was voluntary; 4. The trial court erred in failing to advise Petitioner of his constitutional right to testify notwithstanding defense counsel’s advice; 5. The trial court erred in precluding Petitioner from eliciting the exculpatory portion of his post-arrest statement; 6. The trial court erred in convicting and sentencing Petitioner for the unlawful display of a firearm where the offense arose from the robbery charge during the commission of a felony and where the offense arose from the same incidents upon which his conviction for robbery with a firearm was based; 7. The trial court erred in adjudicating Petitioner an habitual offender, and; 8. The trial court erred in sentencing Petitioner as an habitual offender where the court indicated there was no discretion in applying the habitual offender statute’s permissive penalties.”

quoted by 1 later decision, including 142 F. Supp. 2d 1369 - MacK v. Singletary

Relies on Burdick v. State · Cleveland v. State · Stripling v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1992-11-10

View the full empirical analysis of this case →

PER CURIAM.

¶1Upon our consideration of the record and the state’s confession of error, we reverse in part the convictions ordered below and vacate in part the sentences imposed.

¶2First, when a robbery conviction is enhanced because of the use of a firearm in the robbery, the single act with the same firearm cannot form the basis for a separate conviction and sentence. Stripling v. State, 602 So.2d 663 (Fla. 3d DCA 1992) (citing Cleveland v. State, 587 So.2d 1145, 1146 (Fla.1991)). Accordingly, Mack’s conviction for unlawful display of a firearm must be reversed and that sentence vacated. Second, in sentencing Mack to life imprisonment after finding him an habitual offender, the trial judge acted under the erroneous belief that there was no discretion in applying the habitual offender statute’s permissive penalties. Because this is not the case, see Stripling, 602 So.2d at 664-65; see also Burdick v. State, 594 So.2d 267 (Fla.1992); §§ 775.084(4)(a)(1) & (4)(b)(1), Fla.Stat. (1991), the life sentence ordered must be vacated and the case re-. manded to the trial court to reevaluate and enter an appropriate sentence. We have examined appellant’s remaining points and are of the view that they are nonmeritorious.

¶3Affirmed in part, reversed in part, and remanded.

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