Benedit v. State (610 So. 2d 699, 1992)

PER CURIAM.

We reverse the trial court’s summary denial of the defendant William Benedit’s motion to vacate filed pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. Without dispute, the defendant’s conviction and sentence for possession of a firearm during the commission of a felony, entered upon an adverse jury verdict, is absolutely barred by the defendant’s constitutional right against double jeopardy. Cleveland v. State, 587 So.2d 1145 (Fla.1991); Galban v. State, 605 So.2d 579 (Fla. 3d DCA1992); Pearson v. State, 603 So.2d 676 (Fla. 3d DCA1992); Sessions v. State, 597 So.2d 832 (Fla. 3d DCA1992); Goodman v. State, 567 So.2d 37 (Fla. 3d DCA1990); Henderson v. State, 526 So.2d 743 (Fla. 3d DCA1988). This being so, the defendant was entitled to have this constitutionally barred conviction and sentence set aside under Rule 3.850. See Gandy v. State, 560 So.2d 1363 (Fla. 1st DCA1990); Pastor v. State, 536 So.2d 356 (Fla. 3d DCA1988), quashed on other grounds, 556 So.2d 1112 (Fla.1990); Gonzalez-Osorio v. State, 535 So.2d 644 (Fla. 2d DCA1988), rev. denied, 544 So.2d 199 (Fla.1989); Zatler v. State, 475 So.2d 983 (Fla. 3d DCA1985); see also Finley v. State, 394 So.2d 215 (Fla. 1st DCA1981). Moreover, we conclude that, under the circumstances of this case, it would be fundamentally unfair to follow a concededly erroneous affirmance of this conviction by this court on a direct appeal from the subject conviction where the same point was raised and incorrectly rejected without discussion, Be-nedit v. State, 575 So.2d 236 (Fla. 3d DCA), rev. denied, 589 So.2d 289 (Fla.1991), especially when the law at the time of the direct appeal was less than a model of clarity on this issue. Moreland v. State, 582 So.2d 618 (Fla.1991); Witt v. State, 387 So.2d 922, 931 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Joseph v. State, 447 So.2d 243, 246-47 (Fla. 3d DCA1983) (en banc), rev. denied, 447 So.2d 888 (Fla.1983); accord Wright v. State, 604 So.2d 1248 (Fla. 4th DCA1992); Bourgault v. State, 515 So.2d 1287 (Fla. 4th DCA1987) (en banc).

The final order under review is reversed, and the cause is remanded to the trial court with directions to vacate the defendant’s conviction and sentence for possession of a firearm during the commission of a felony.

Reversed and remanded.