LARRY HODGE MCCULLOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry McCullough appealed his sentence for attempted manslaughter with a firearm and dealing in stolen property, arguing that a firearm enhancement under Florida law should apply only to the offense charged, not lesser included offenses. The Second District Court of Appeal rejected this argument and affirmed the sentence, holding that firearm enhancements apply to lesser included offenses supported by the charging document.
The court held that firearm enhancement under section 775.087(1) applies not only to the charged offense but also to lesser included offenses that are supported by the charging document and for which the defendant is convicted. The trial court properly enhanced the attempted manslaughter sentence from a third degree felony to a second degree felony due to the use of a firearm.
[1] A felony conviction for using a firearm can be enhanced under section 775.087, Florida Statutes, to include attempts and lesser included offenses that are supported by th…
[2] The enhancement of a felony conviction for firearm use under section 775.087, Florida Statutes, applies to the crime for which the defendant is ultimately convicted, even…
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Join FLexlaw to unlock all legal intelligence“enhancement and reclassification of felonies pursuant to section 775.087(1) is proper only against the crime charged, rather than the crime for which the defendant is ultimately convicted”
Statement of the rejected holding from Carroll v. State that the appellant relied upon
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Join FLexlaw to unlock all legal intelligenceMcCullough was charged with attempted first degree murder with a firearm, aggravated assault, resisting arrest with force and violence, and dealing in…
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CAMPBELL, Judge.
Appellant, Larry Hodge McCullough, appeals his sentence for attempted manslaughter with a firearm and dealing in stolen property.
Appellant argues on appeal that the trial court erred in reclassifying attempted manslaughter from a third degree felony to a second degree felony for use of a firearm since section 775.087, Florida Statutes (1979) only applies to the charged offense and not to lesser included offenses. We disagree and affirm.
Appellant was charged by information with attempted first degree murder with a firearm, aggravated assault, resisting arrest with force and violence, and dealing in stolen property. The trial court reduced the original charge of attempted first degree murder to attempted second degree murder. Appellant was tried by jury and found guilty of attempted manslaughter with a firearm and dealing in stolen property. The court concluded that aggravated assault was a lesser included offense of attempted manslaughter, and dismissed the charge. The court further ruled that the attempted manslaughter was enhanced from a third degree felony to a second degree felony due to the use of a firearm. Appellant was sentenced to concurrent seven-year terms for each offense.
Appellant argues that this court should apply Carroll v. State, 412 So. 2d 972 (Fla. 1st DCA 1982) to the case at bar. The court in Carroll held that enhancement and reclassification of felonies pursuant to section 775.087(1) is proper only against the crime charged, rather than the crime for which the defendant is ultimately convicted. Id. at 973.
We reject the holding in Carroll and adopt the reasoning in Miller v. State, 438 So. 2d 83 (Fla. 4th DCA 1983). See also Trenary v. State, 423 So. 2d 458 (Fla. 2d DCA 1982). In so doing, we are in conflict with the first district. In Miller, the defendant was charged by information with second degree murder and convicted of attempted second degree murder. His sentence was enhanced for use of a firearm during the crime. On appeal, the court held that “charged” not only encompasses the offenses actually charged in the charging document, but also includes attempts and lesser included offenses which could be supported by the accusatory pleading.
In the case sub judice, the trial court did not err in enhancing appellant’s sentence for attempted manslaughter pursuant to section 775.087(1), Florida Statutes (1979) from a third degree felony to a second degree felony since a firearm was used in the commission of the crime. Therefore, the judgment of the trial court is affirmed on the authority of Miller. HOBSON, A.C.J., and SCHOONOVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Carroll v. State, 412 So. 2d 972 (Fla. 1st DCA 1982)
- Miller v. State, 438 So. 2d 83 (Fla. 4th DCA 1983)
- Magdelena Kneip v. The Honorable Robert W. Tyson, Jr., 423 So. 2d 458 (Fla. 4th DCA 1982)
- Trenary v. State, 423 So. 2d 458 (Fla. 2d DCA 1982)