Torres v. State , 527 So. 2d 272 ( 1988 )

527 So. 2d 272 (1988)

Roque J. TORRES, Appellant,
v.
The STATE of Florida, Appellee.

No. 87-2323.

District Court of Appeal of Florida, Third District.

June 14, 1988. Rehearing Denied July 20, 1988.

Luis E. Rojas, Hialeah, and Susan Minor, Coral Gables, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.

PER CURIAM.

The defendant was convicted of two counts of attempted second-degree murder by discharging a firearm; the unlawful possession of a firearm while engaged in a criminal offense, namely, the attempted murders; and shooting into an occupied building, that is, discharging the firearm during the attempted murders. He was sentenced within the guidelines to terms of twenty-two years' imprisonment on the attempted murder counts and fifteen years' imprisonment on the remaining counts, all sentences to run concurrently.

None of the errors asserted by the defendant warrants a new trial, and the evidence, viewed most favorably to the State, amply supports the jury's guilty verdicts. We must, however, vacate the judgments of conviction on Count III for unlawful possession of a firearm while engaged in a criminal offense and Count IV for shooting into an occupied building. See Carawan v. State, 515 So. 2d 161 (Fla. 1987); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); Wilcher v. State, 524 So. 2d 1105 (Fla. 3d DCA 1988); McKinnon v. State, 523 So. 2d 1238 (Fla. 1st DCA 1988) (Cowart, J., concurring). Because only nineteen of the total 279 points on the sentencing guideline scoresheet were attributed to Counts III and IV (as "additional offenses at conviction"), the defendant's point score, even after recalculation, still places him within the recommended range of seventeen to twenty-two years, and there is thus no need for resentencing.

Affirmed as to Counts I and II; reversed as to Counts III and IV, with instructions to vacate the convictions on these counts.