#### Steven Merrill SELLARS, Appellant, v. STATE of Florida, Appellee.

No. GG-396.

District Court of Appeal of Florida, First District.

July 18, 1978.

Rehearing Denied Sept. 25, 1978.

*34Michael J. Minerva, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee.

PER CURIAM.

Sellars appeals his convictions following non-jury trial finding him guilty of three counts of robbery, three counts of use of a firearm in the commission of each of the robberies and four counts of conspiracy.

Sellars complains that the three sentences imposed upon him for possession of a firearm during the commission of three robberies were illegal because each offense was a facet of the robbery for which he was also sentenced. We agree and reverse. Only one sentence may be imposed for the offense of robbery and use of a firearm during the commission of the same robbery. *Cone v. State,*285 So.2d 12 (Fla.1973); *Zygadlo v. State,*341 So.2d 1053 (Fla. 1st DCA 1977); *Davison v. State,*346 So.2d 1238 (Fla. 1st DCA 1977). *Contra Campbell v. State,*310 So.2d 319 (Fla. 3d DCA 1975); *Swyers v. State,*334 So.2d 278 (Fla. 3d DCA 1976); *Johnson v. State,*338 So.2d 556 (Fla. 3d DCA 1976).

The court additionally failed to accord Sellars credit for time previously served in jail awaiting trial contrary to Section 921.161, Florida Statutes (1977). Accordingly the three sentences imposed upon appellant for use of a firearm during the commission of the robberies are vacated. The cause is remanded to the trial court so that appropriate credit may be imposed upon the remaining sentences. The sentences are otherwise affirmed.

AFFIRMED in part, REVERSED in part.

SMITH, Acting C. J., and ERVIN, J., concur.

BOOTH, J., dissenting in part and concurring in part.

BOOTH, Judge,

dissenting in part and concurring in part.

I dissent as to the reversal of the convictions for possession of a firearm and concur in the remainder of the opinion.

ON PETITION FOR REHEARING

PER CURIAM.

We have considered both appellant’s and appellee’s petitions for rehearing and deny them. We find, however, that further explication should be made as to that portion of our opinion vacating three sentences imposed upon appellant for use of a firearm *35during the commission of the three robberies. Appellant was charged in a ten count information with three counts of robbery while using a firearm, contrary to Section 812.13(2)(a), Florida Statutes (1975), which makes it a felony of the first degree, punishable by life imprisonment. Three of the counts of the information also alleged appellant’s use of a firearm during the commission of the three robberies, contrary to Section 790.07(2), Florida Statutes (1975), which provides that the display of a firearm during the commission of a felony is a felony of the second degree.

While Section 775.021(4), Florida Statutes (1977),1 was not effective until October 1, 1976, subsequent to the dates the offenses were committed, and is of course not applicable, we believe even if the statute were in existence, it would still be inefficacious since it specifically excludes “lesser included offenses, committed during said criminal episode, . . .” The offenses charged in counts two, five and eight of the information, alleging display of a firearm during the commission of the robberies, must be considered lesser included offenses to the greater offenses of the armed robberies. Fla.R.Crim.P. 3.510 authorizes a jury to convict a defendant “of any offense which is necessarily included in the offense charged.” Rule 3.510 was derived from Section 919.16, Florida Statutes (1965). In interpreting the statute which was worded in substantially the same fashion as the rule, the Supreme Court in *Brown v. State,*206 So.2d 377, 381-382 (Fla.1968), stated:

> The statutory mandate here requires that the lesser offense be *necessarily*included in the major offense *charged*by the accusatory pleading. This simply means that the lesser offense must be an essential aspect of the major offense. In other words, the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. (Emphasis in original.)

The court continued that if there was sufficient evidence to establish the major offense charged, there is necessarily sufficient evidence to establish all elements of the lesser included offense. Id. at 382.

We conclude from *Brown*that display of a firearm during the commission of a robbery which is proscribed by Section 812.13(2)(a), is therefore a necessarily included offense to the major offense charged. The evidence relating to the same transactions as those of the robberies revealed the use of a firearm during the commission of the three robberies. The greater offense of armed robbery could not have been established without proof of the lesser crime “as an essential link in the chain of evidence.”

The petitions for rehearing are DENIED.

SMITH, Acting C. J., and ERVIN,' J., concur.

BOOTH, J., dissents.

1

. Which provides:

> Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

BOOTH, Judge,

dissenting.

I would grant rehearing and affirm the separate sentences below for use of a firearm during the commission of a felony. *Florida Statute*§ 775.021(4), effective October 1, 19761, provides:

> “Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order' the sentences to be served concurrently or consecutively.”

*36The Legislature has thus adopted and codified the line of cases, rejected by the majority, upholding separate sentences imposed on a defendant convicted of violating *two or more criminal statutes*as part of the same act or occurrence. *Estevez v. State,*313 So.2d 692 (Fla.1975) [separate sentences for (1) breaking and entering with intent to commit a felony, to wit: grand larceny, and (2) grand larceny, upheld]; *Campbell v. State,*310 So.2d 319 (Fla. 3d DCA 1975) [separate sentences for (1) rape and (2) *unlawful possession of a firearm in commission of offense,*upheld]; *Swyers v. State,*334 So.2d 278 (Fla. 3d DCA 1976) [separate sentences for (1) involuntary sexual battery, (2) false imprisonment, (3) kidnapping and (4) *unlawful possession of a firearm*in commission of offense, upheld]; *Johnson v. State,*338 So.2d 556 (Fla. 3d DCA 1976) [separate sentences for (1) robbery and (2) *display of a firearm during commission of a felony,*upheld].

The majority relies on *Cone v. State,*285 So.2d 12 (Fla.1973), a questionable authority as stated in *Johnson v. State,*supra:

> “We find that the appellant’s reliance on *Cone v. State*is misplaced inasmuch as *Cone*has been overruled by implication by the holdings and reasoning of subsequent Florida Supreme Court decisions. See *Estevez v. State,*313 So.2d 692 (Fla. 1975); *Jenkins v. Wainwright,*322 So.2d 477 (Fla.1975); and *State v. Ray,*331 So.2d 316 (Fla.1976).”

In the instant case the defendant was convicted of three counts of armed robbery *[Florida Statute*§ 812.13], a felony of the first degree; and three counts of use of a firearm during the commission of a felony *[Florida Statute*§ 790.07(2)], a felony of the second degree, as well as four counts of conspiracy to commit a felony *[Florida Statute*§ 777.04(4)(b)]. On substantially similar facts in *Baum v. State,*353 So.2d 936 (Fla. 3d DCA 1978), the court held:

> “Joseph Baum was charged by information with two counts of robbery and one count of unlawful possession of a firearm during the commission of a felony. He was tried by jury, found guilty, convicted and sentenced to consecutive terms of life imprisonment in the state penitentiary for each of the robbery charges, and fifteen years imprisonment for the charge of unlawful possession of a firearm .

> ******

> The second point is that the court erred in imposing separate consecutive sentences for robbery and for unlawful possession of a firearm, where both charges arose out of the same transaction. This sentencing question has been resolved adversely to the defendant. See *Estevez v. State,*313 So.2d 692 (Fla.1975); *Swyers v. State,*334 So.2d 278 (Fla. 3d DCA 1976); *Johnson v. State,*338 So.2d 556 (Fla. 3d DCA 1976).”

The decision in *Baum*and cases cited therein is both the better view and the view now codified as the law of the State of Florida.

I respectfully dissent.

1

. Offenses here were committed in February of 1976.