JOHN WADE CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Wade Carter appeals his convictions for second-degree murder with a firearm and attempted second-degree murder with a firearm, challenging the sentences imposed. The court affirms the convictions and sentences but strikes the trial court's improper retention of jurisdiction over the sentence.
The court held that the application of both subsections (1) and (2) of section 775.087 does not constitute impermissible double enhancement because the subsections serve separate functions. However, the court erred in retaining jurisdiction over the sentence because parole is no longer available to defendants sentenced under the guidelines.
[1] A trial court may reclassify a felony and impose a mandatory minimum sentence for firearm use, as these provisions serve separate functions.
[2] A trial court errs in retaining jurisdiction over a sentence imposed pursuant to the sentencing guidelines, as parole is no longer available.
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Join FLexlaw to unlock all legal intelligence“the legislature did not intend subsections (1) and (2) of section 775.087 to be alternative methods of enhancement”
Establishes that the two subsections serve separate functions and do not constitute impermissible double enhancement
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Join FLexlaw to unlock all legal intelligenceCarter was adjudicated guilty of second-degree murder with a firearm and attempted second-degree murder with a firearm. He was sentenced to twenty-two…
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SCHEB, Acting Chief Judge.
John Wade Carter was adjudicated guilty of second-degree murder with a firearm and attempted second-degree murder with a firearm. He was sentenced pursuant to the sentencing guidelines to twenty-two years imprisonment for the murder charge and fifteen-years probation for the attempted murder. The sentences are to run consecutively. The court also imposed a minimum mandatory prison term of three years.
Defendant raises several points on appeal, all relating to the sentences imposed by the trial court. First, he argues that the trial court erred when it doubly enhanced his sentence for the murder charge by reclassifying and enhancing the crime from first-degree felony to a life felony, see section 775.087(1), and then imposing a three-year mandatory minimum sentence, see section 775.087(2). He relies on Whitehead v. State, 450 So. 2d 545 (Fla. 3d DCA), petition for review granted, 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, while subsection (2) provides for a mandatory minimum imprisonment only for certain felonies named therein. Thus, the two subsections serve separate functions in deterring and punishing both the presence of firearms during the commission of felonies in general and the use of firearms for the commission of certain specified felonies. See also Judge Pearson’s dissenting opinion in Whitehead, 450 So .2d at 546. We recognize that our decision places us in conflict with the Third District’s opinion in Whitehead.
Defendant also argues that the trial court erred in retaining jurisdiction over his sentence pursuant to section 947.-16(3). We agree. The purpose of the statute is to prohibit parole of a criminal defendant without the approval of the trial judge until after that defendant has served a specified portion of his sentence. Williams v. State, 374 So. 2d 1086 (Fla. 2d DCA 1979). However, parole is no longer available to the defendant because he was sentenced pursuant to the guidelines. § 921.001(8). Thus, the court erred in retaining jurisdiction over defendant’s sentence. See Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984).
We reject all of the remaining points raised by defendant.
Accordingly, we strike the trial court’s retention of jurisdiction but affirm defendant’s judgment and sentences in all other respects.
DANAHY and SCHOONOVER, JJ., concur.
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Citator
Cited By (22 total)
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Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996)…on in State v. Whitfield, 487 So. 2d 1045 (Fla.1986), which amended rule 3.800 to specifically authorize such relief. See also Karchesky v. State, 591 So. 2d 930 (Fla. 1992). . See Hallman v. State, 560 So. 2d 223, 228 (Fla. 1990); Carter v. State, 464 So. 2d 172, 173 (Fla. 2d DCA), affirmed, 479 So. 2d 117 (Fla.1985).…
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Bradley v. State, 468 So. 2d 378 (Fla. 1st DCA 1985)…rial court improperly retained jurisdiction, the Second District Court of Appeal has heretofore merely set aside the retention. Emory v. State, 463 So. 2d 1242 (Fla. 2d DCA 1985); Hawkins v. State, 463 So. 2d 480 (Fla. 2d DCA 1985); Carter v. State, 464 So. 2d 172 (Fla. 2d DCA 1985). Cf., Walker v. State (Fla. 1st DCA 1985) [10 FLW 753] (error recognized, but sentence vacated on other grounds). But in the case before us, the record clearly shows the trial court was under the mistaken impression that Bradley w…
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Williams v. State, 470 So. 2d 864 (Fla. 2d DCA 1985)…ing guidelines. § 921.001(8), Fla. Stat. (1983). Thus, the trial court erred in retaining jurisdiction over defendant’s sentence. Emory v. State, 463 So. 2d 1242 (Fla.2d DCA 1985); Hawkins v. State, 463 So. 2d 480 (Fla.2d DCA 1985); Carter v. State, 464 So. 2d 172 (Fla.2d DCA 1985). DANAHY, A.C.J., and CAMPBELL and HALL, JJ., concur.…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Whitehead v. State, 450 So. 2d 545 (Fla. 3d DCA 1984)
- Williams v. State, 374 So. 2d 1086 (Fla. 2d DCA 1979)
- Brown v. State, 460 So. 2d 546 (Fla. 1st DCA 1984)