LARRY DONNELL BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Donnell Brown appeals his 17-year sentence for second-degree murder with a firearm, arguing that the trial court's reclassification of the crime as a life felony under Florida Statutes § 775.087(1), combined with the mandatory 3-year minimum sentence under § 775.087(2), constitutes impermissible double enhancement. The First District Court of Appeal affirms, holding that the two statutory subsections serve distinct functions and are not alternative enhancement mechanisms.
The court held that sections 775.087(1) and 775.087(2) serve two different functions and do not constitute alternative enhancement mechanisms. Subsection (1) provides for reclassification of a felony to a higher degree based on weapon use, while subsection (2) imposes a mandatory minimum sentence without increasing the punishment itself. Therefore, application of both subsections does not constitute double enhancement.
[1] A statute reclassifying a felony to a higher degree based on the use of a firearm and a statute imposing a mandatory minimum sentence for possessing a firearm during the…
[2] The reclassification of a felony to a life felony pursuant to section 775.087(1), Florida Statutes, is permissible even when a mandatory minimum sentence for firearm use…
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Join FLexlaw to unlock all legal intelligence“the two subsections of Section 775.087 serve two different functions. Subsection (1) provides for reclassification of a felony to a higher degree where a weapon or firearm was used and the use of the weapon has not already resulted in the offense being upgraded to a higher degree_ However, subsection (2) does not increase the punishment but rather provides for mandatory minimum imprisonment for a person who has been convicted of [a crime] while possessing a firearm.”
Establishes the critical distinction between the two statutory subsections that defeats the double enhancement argument
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Join FLexlaw to unlock all legal intelligenceBrown pled guilty to second-degree murder with a firearm. At sentencing, the trial judge reclassified the crime as a life felony pursuant to section 7…
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SHIVERS, Judge.
Defendant appeals a sentence for second degree murder with a firearm. We affirm.
Defendant pled guilty to the above charge. At sentencing, the trial judge reclassified the crime as a life felony, pursuant to section 775.087(1), Florida Statutes, (1983), and imposed a 17-year sentence per the sentencing guidelines. A 3-year mandatory minimum sentence attributable to the use of a firearm was also imposed, pursuant to section 775.087(2), Florida Statutes (1983). Defendant relies on Whitehead v. State, 450 So. 2d 545 (Fla. 3d DCA 1984), disc. rev. pending, Case No. 65,492, for the proposition that the reclassification to a life felony where defendant is also subject to a 3-year mandatory minimum sentence would constitute an impermissible double enhancement. We disagree and, in so doing, recognize that our decision con flicts with the Third District Court of Appeal in Whitehead v. State, supra.
The court in Whitehead based its decision on the conclusion that both §§ 775.-087(1) and 775.087(2) constitute a form of enhancement. The functions of the two subsections, however, have been distinguished by the Fourth District Court of Appeal in Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980), rev. denied, 399 So. 2d 1140 (1981):
[I]t is clear that the two subsections of Section 775.087 serve two different functions. Subsection (1) provides for reclassification of a felony to a higher degree where a weapon or firearm was used and the use of the weapon has not already resulted in the offense being upgraded to a higher degree_ However, subsection (2) does not increase the punishment but rather provides for mandatory minimum imprisonment for a person who has been convicted of [a crime] while possessing a firearm.
388 So. 2d at 1274. That distinction has been adopted by this court in Vause v. State, 424 So. 2d 52, 56 (Fla. 1st DCA 1982) and by the fifth district in Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983). See also Aikens v. State, 423 So. 2d 593 (Fla. 1st DCA 1982) (rejecting appellant’s argument that subsections (1) and (2) are to be read in pari materia).
In addition to the distinction noted in Blanton v. State, supra, it would appear that the legislature did not intend the two subsections to be alternative methods of enhancement, as they are not addressed to congruent sets of crimes. Subsection (1) applies to all felonies while subsection (2) applies only to certain felonies named therein. This would indicate that the subsections were drafted to serve separate functions in deterring and punishing both the presence of firearms during the commission of felonies in general and the use of firearms at certain felonies.
Accordingly, appellant’s sentence is AFFIRMED.
MILLS and WENTWORTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Carter v. State, 464 So. 2d 172 (Fla. 2d DCA 1985)…nted, Case No. 65,-492 (Fla. December 13, 1984), for the pro-postition that this is an impermissible double enhancement. We disagree that the “double enhancement” here was impermissible. We agree with the First District’s opinion in Brown v. State, 460 So. 2d 546 (Fla. 1st DCA 1984). There, the court held that the legislature did not intend subsections (1) and (2) of section 775.087 to be alternative methods of enhancement. The court pointed out that subsection (1) applies to reclassification of all felonies…
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Rasley v. State, 878 So. 2d 473 (Fla. 1st DCA 2004)…offense,4 and thereafter imposed the 25-year minimum mandatory sentence.5 Appellant contends such sentences constitute an impermissible double enhancement. We cannot agree. This issue was decided adversely to appellant’s position in Brown v. State, 460 So. 2d 546 (Fla. 1st DCA 1984), approved, 475 So. 2d 1243 (Fla.1985), and State v. Whitehead, 472 So. 2d 730 (Fla.1985). In Whitehead, the supreme court concluded subsections (1) and (2) of section 775.087 are not mutually exclusive. Subsection (1) provides th…
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State v. Whitehead, 472 So. 2d 730 (Fla. 1985)…s. This would indicate that the subsections were drafted to serve separate functions in deterring and punishing both the presence of firearms during the commission of felonies in general and the use of firearms at certain felonies. Brown v. State, 460 So. 2d 546, 547 (Fla. 1st DCA 1984). Determination of punishment for crimes is a legislative matter. Because the legislature has provided both these subsections, both are to be followed. Absent an indication from the legislature that these subsections are an…
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
- Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980)
- Whitehead v. State, 450 So. 2d 545 (Fla. 3d DCA 1984)
- Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983)
- Vause v. State, 424 So. 2d 52 (Fla. 1st DCA 1982)
- Aikens v. State, 423 So. 2d 593 (Fla. 1st DCA 1982)