DAVID FAMIGLIETTI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed the trial court's imposition of mandatory minimum sentences under Florida's firearm enhancement statute for attempted second degree murder convictions, holding that the jury's verdict did not include a specific finding that a firearm was used in those counts.
The trial court erred in enhancing the sentences for Counts I and II. Firearm enhancement and mandatory minimum sentencing provisions apply only where the jury makes a specific finding of firearm use, unless such use is an essential element of the crime. A conviction on a separate count involving a firearm does not satisfy this requirement for other counts.
[1] A jury must make a specific finding of firearm use to impose a mandatory minimum sentence for attempted murder with a firearm, unless firearm use is an essential element…
[2] A conviction for shooting into an occupied vehicle does not, by itself, satisfy the jury finding requirement for imposing a mandatory minimum sentence on a separate charg…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is well established that these sentencing devices are applicable only where the jury makes a specific finding of use of a firearm unless such use is an essential element of the crime to which the conviction pertains.”
Establishes the core holding that firearm enhancements require specific jury findings, creating the distinction between essential and non-essential elements.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was charged with two counts of attempted first degree murder with a firearm and one count of shooting into an occupied vehicle. The jury con…
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HERSEY, Chief Judge.
Appellant was charged with two counts of attempted first degree murder with a firearm and one count of shooting into an occupied vehicle.
The jury returned a verdict form finding appellant guilty of the lesser included offense of attempted second degree murder under Counts I and II, and guilty as charged of shooting into an occupied vehicle under Count III. The trial court, pursuant to section 775.087(2), Florida Statutes (1981), imposed three-year mandatory minimum sentences for each of the above counts. Appellant argues that this was error since the jury did not specifically find that appellant used a firearm in Counts I and II.
Section 775.087(1), Florida Statutes, provides that when a person commits a felony with a firearm (except those in which use of a firearm is an essential element) his sentence shall be reclassified one category higher. Section 775.087(2), Florida Statutes, provides that any person who is convicted of an attempt to commit murder with a firearm shall be sentenced to a mandatory minimum term of three years.
The first question — whether the above statutes are mutually exclusive — was decided in State v. Whitehead, 472 So. 2d 730 (Fla.1985). In that case appellant was convicted of second degree murder with a firearm. The district court held that reclassification of the offense to one category higher, together with the imposition of the three-year mandatory minimum, constituted impermissible double enhancement. The Florida Supreme Court disagreed since it found “nothing in the statute to indicate that the legislature intended that subsections (1) and (2) be mutually exclusive.” Id. at 732.
The trial court fell into error, however, when it enhanced the convictions on Counts I and II and imposed mandatory minimum sentences for each of those convictions. It is well established that these sentencing devices are applicable only where the jury makes a specific finding of use of a firearm unless such use is an essential element of the crime to which the conviction pertains. State v. Overfelt, 457 So. 2d 1385 (Fla.1984). It is not sufficient that the jury also con victed appellant on Count III of an offense involving the use of a firearm. Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982).
We therefore reverse and remand for resentencing on Counts I and II. We affirm the sentence on Count III.
REVERSED AND REMANDED.
DOWNEY and GLICKSTEIN, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hawryluk v. State, 529 So. 2d 1186 (Fla. 5th DCA 1988)…ad been used. Although the jury found defendant guilty in a separate count of possession of a weapon in the commission of a felony, that finding cannot be used to supply the missing ingredient in the attempted murder count. See Famiglietti v. State, 481 So. 2d 947 (Fla. 4th DCA 1985); Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982). The State relies on Miller v. State, 460 So. 2d 373 (Fla.1984) as supporting the enhancement in this case. In Miller, decided very shortly after Overfelt, the issue present…
Authorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Murrell Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982)
- THE Florida BAR v. Jones, 472 So. 2d 730 (Fla. 1985)
- State v. Whitehead, 472 So. 2d 730 (Fla. 1985)