CLIFFORD TALMADGE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida appellate court reversed a sentence enhancement for firearm use during manslaughter, holding that a trial judge cannot reclassify a lesser included offense as a first-degree felony under Section 775.087(1) without an express jury finding that the defendant used a firearm.
A trial judge cannot reclassify a lesser included offense conviction as a first-degree felony under Section 775.087(1) without an express finding by the jury that the defendant used a firearm. The court reversed the conviction and sentence, certifying both a direct conflict with Miller v. State and a question of great public importance regarding whether Section 775.087(1) applies to lesser included offenses.
[1] Reclassification of an offense under Section 775.087(1), Florida Statutes, is applicable only to the crime expressly charged in the indictment or information, not to less…
[2] A jury must make an express finding that a defendant used a firearm for the offense to be reclassified under Section 775.087(1), Florida Statutes.
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Join FLexlaw to unlock all legal intelligence“reclassification under Section 775.087(1) is applicable only with respect to the crime expressly charged in the information or indictment and not to lesser included offenses”
Establishes the defendant's first contention regarding the scope of reclassification provisions
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Join FLexlaw to unlock all legal intelligenceClifford Smith was charged with second-degree murder but convicted of the lesser included offense of manslaughter. At sentencing, the trial judge foun…
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PER CURIAM.
The defendant was tried on a charge of second degree murder and convicted of the lesser offense of manslaughter. At sentencing, the trial judge, over defense objections, announced that he found that the defendant used a firearm during the commission of the offense, reclassified the offense to a first degree felony under Section 775.087(1), Florida Statutes (1981), and sentenced the defendant to a term of twenty-five years imprisonment.
The defendant asserts on appeal that the trial court erred because: (1) reclassification under Section 775.087(1) is applicable only with respect to the crime expressly charged in the information or indictment and not to lesser included offenses; and (2) there must be a finding by the jury that the defendant used the firearm in order for reclassification to occur under Section 775.-087(1).
As to the defendant’s first contention, this court has already determined the question adversely to the state in Carroll v. State, 412 So. 2d 972 (Fla. 1st DCA 1982). We recognize that the Fourth District has reached the opposite conclusion in Miller v. State, 438 So. 2d 83 (Fla. 4th DCA 1983), and that our decisions on this point in Carroll and in this case are in direct conflict with Miller. Although we reverse on this point, we certify such conflict pursuant to Fla.App.R. 9.030(a)(2)(A)(vi). We also certify to the Florida Supreme Court the following as a question of great public importance pursuant to Fla.App.R. 9.030(a)(2)(A)(v):
DO THE RECLASSIFICATION PROVISIONS OF SECTION 775.087(1), FLORIDA STATUTES, APPLY WHERE THE DEFENDANT IS NOT CONVICTED OF THE OFFENSE EXPRESSLY CHARGED IN THE INFORMATION OR INDICTMENT BUT, INSTEAD, IS CONVICTED OF A LESSER INCLUDED OFFENSE?
On the second point, the defendant asserts that the trial judge was not at liberty to reclassify the offense absent the jury’s express finding that the defendant used a firearm, the verdict reflecting no such finding. We agree with the defendant’s position and adopt the reasoning of the court in Streeter v. State, 416 So. 2d 1203 (Fla. 3rd DCA 1982). Accord Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983). We, therefore, reverse on this point as well.
The judgment reflecting conviction of a first degree felony and the sentence are vacated and this cause is remanded for the entry of a new judgment and sentence consistent with this opinion.
Reversed and Remanded.
SMITH, WIGGINTON and NIMMONS, JJ., concur.
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State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)…a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.” 434 So. 2d at 948. See also Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984); Smith v. State, 445 So. 2d 1050 (Fla. 1st DCA 1984); Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982); Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981). But see Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983). The question of whether an accused actually possessed a fire…
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Cooper v. State, 455 So. 2d 588 (Fla. 1st DCA 1984)…n under section 775.087(l)(b), Florida Statutes (1983). We affirm the trial court’s holding that the offenses are first degree felonies and recede from this court’s holdings in Carroll v. State, 412 So. 2d 972 (Fla. 1st DCA 1982) and Smith v. State, 445 So. 2d 1050 (Fla. 1st DCA 1984). All necessarily included offenses and lesser included offenses are “charged” within the meaning of section 775.087. This is a concept of fundamental fairness in the criminal accusatorial process that is so well-established that…
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State v. Smith, 462 So. 2d 1102 (Fla. 1985)…BOYD, Chief Justice. This cause is before the Court on petition of the State of Florida for review of the decision of the district court of appeal reported as Smith v. State, 445 So. 2d 1050 (Fla. 1st DCA 1984). The district court certified that its decision passed upon a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Respondent was charged with second-degree murder and, upon being tried on th…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Murrell Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982)
- Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983)
- Carroll v. State, 412 So. 2d 972 (Fla. 1st DCA 1982)
- Miller v. State, 438 So. 2d 83 (Fla. 4th DCA 1983)