Davis v. State , 559 So. 2d 707 ( 1990 )

559 So.2d 707 (1990)

Winston George DAVIS, Appellant,
v.
STATE of Florida, Appellee.

No. 89-1610.

District Court of Appeal of Florida, Fourth District.

April 11, 1990.

Sharon Bradley of Daley and Miller, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

In this belated appeal appellant contends that his constitutional protection against double jeopardy was violated by the trial court's entering a judgment of conviction and sentence for attempted first degree murder and aggravated battery arising out of a criminal episode wherein appellant fired several shots at the victim, one of which struck the victim.

We have carefully considered the record herein and arguments of counsel and conclude that appellant's contention has merit. Our study of the statutes involved leads to the conclusion that both statutes address the same evil. Furthermore, we are unable to determine that the legislature intended dual convictions for both the attempted homicide and the aggravated battery that occurred during that attempt where no additional injury was caused to another person or property. Thus, following the teaching set forth in Carawan v. State, 515 So.2d 161 (Fla. 1987); State v. Boivin, 487 So.2d 1037 (Fla. 1986); and Mills v. State, 476 So.2d 172 (Fla. 1985), we affirm the attempted murder conviction and sentence, but are compelled to reverse the judgment of conviction and sentence for aggravated battery. It is so ordered.

Affirmed in part, and reversed in part.

DOWNEY, WALDEN and POLEN, JJ., concur.