Florida District Courts of Appeal, 1995

Jones v. State

Jones v. State
Florida District Courts of Appeal · Decided October 24, 1995 · Benton, Ervin, Nortwick
667 So. 2d 349; 1995 Fla. App. LEXIS 11096; 1995 WL 621284 (Southern Reporter, Second Series)

Jones v. State

Opinion of the Court

PER CURIAM.

Bernard Curtis Jones appeals his convictions and sentences for two counts of armed *350robbery arising out of a January 1994 robbery of a Jacksonville convenience store. Jones argues that the trial court erred in denying a continuance of the trial and in imposing a three-year minimum mandatory sentence under section 775.087(2), Florida Statutes, for the use of a firearm during the commission of the robbery to be served consecutive to a 15-year minimum mandatory habitual violent felony offender sentence arising from the same episode.

We find that the trial court’s denial of the motion for continuance did not constitute a palpable abuse of discretion, Smith v. State, 525 So.2d 477 (Fla. 1st DCA 1988). However, on the authority of the recent decision of the Florida Supreme Court in Jackson v. State, 659 So.2d 1060 (Fla. 1995), we hold that the trial court erred in imposing a consecutive three-year minimum mandatory sentence for the use of a firearm together with a 15-year habitual violent felony offender sentence for offenses that arose out of a single criminal episode. See also, Davis v. State, 630 So.2d 595 (Fla. 2d DCA 1993), and Longley v. State, 614 So.2d 34 (Fla. 5th DCA 1993).

Accordingly, we AFFIRM the convictions, but VACATE the sentence and REMAND for resentencing consistent with this opinion. Appellant does not have to be present for resentencing.

ERVIN, BENTON and VAN NORTWICK, JJ., concur.

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