¶1Because of the common issue in these cases, which we elect to pass through to the supreme court pursuant to the provisions of Art. V, § 3(b)(4), Fla. Const., we have consolidated for the purpose of this opinion the cases of Afghan Boler v. State and Sonny Boy Oats, III v. State, in which the panels have reached a conflicting result on the same issue of law. We, as a court, are unable to resolve the conflict. Indeed, en banc proved unsuccessful when the court divided four to four.
¶2The issue which divides this court, and which we pass through to the supreme court, is:
AFTER UNITED STATES v. DIXON, — U.S.-, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), MAY A DEFENDANT, IN FLORIDA, BE SEPARATELY CONVICTED AND SENTENCED FOR THE FELONY MURDER AND THE QUALIFYING FELONY EVEN IN THE SAME PROSECUTION?
¶3In order to assist the court, we include as concurring opinions the panel decisions on this issue. Mandates will issue in neither case until the supreme court decides whether to accept jurisdiction and, if so, decides the issue.
¶4Boler v. State, Case No. 93-1622.
¶5Oats v. State, Case No. 93-2092.
¶6. Wc have elected not to delay this matter until a replacement is named to fill the vacancy now occurring on the court.