ROBERT G. HENRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence enhancement was improper without a jury finding of firearm possession, but the conviction was affirmed.
The defendant was convicted of manslaughter and his sentence was enhanced due to alleged firearm possession. The defendant appealed the conviction and…
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DAUKSCH, Judge.
This is an appeal from a conviction and sentence for manslaughter. The first point on appeal involves alleged prosecutorial misconduct regarding a comment about the failure of the defendant to call witnesses for his defense. There was no misconduct and no error. Defense counsel invited the comments by his argument regarding the failure of the state to present certain evidence and call certain witnesses. The state attorney’s comments were fair rebuttal.
The second point on appeal involves a sentence enhancement. Because a firearm was possessed in the commission of the crime, appellant’s sentence was enhanced from a second degree felony punishment to a first degree felony punishment under authority of section 775.087(1), Florida Statutes (1983). It was error for the court to have enhanced the penalty because before that can lawfully be done, there must be a specific finding by the jury that a firearm was possessed during the commission of the manslaughter. State v. Overfelt, 457 So. 2d 1385 (Fla.1984), which cites and implicitly overrules Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983).
The third point on appeal involves a departure sentence under the guidelines. Because we must remand this case for resentencing under point two we express no opinion regarding the departure.
The conviction is affirmed, the sentence vacated and this cause remanded for resentencing as a second degree felony.
Conviction AFFIRMED; sentence VACATED, REMANDED.
UPCHURCH and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Hargrove, 694 So. 2d 729 (Fla. 1997)…74 (Fla. 4th DCA 1989) (required specific finding to uphold mandatory minimum); Douglas v. State, 523 So. 2d 704 (Fla. 2d DCA 1988) (the proper means to determine whether firearm was used is by specific question on the verdict form); Henry v. State, 483 So. 2d 860 (Fla. 5th DCA 1986) (enhancement was error where there was no specific finding). While a specific question or special verdict form is the clearest way by which the jury can make the finding necessary to support this enhancement, we note that Overfe…
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Davis v. State, 486 So. 2d 45 (Fla. 5th DCA 1986)…Judge Cobb in Tindall. On this point the supreme court in State v. Overfelt, 457 So. 2d 1385 (Fla.1984), specifically agreed with the fourth district court opinion in Overfelt and impliedly, if not expressly, disapproved of Tindall. Henry v. State, 483 So. 2d 860 (Fla. 5th DCA 1986). However, the jury verdict, which was, of course, in the files and records before the trial court at the time of the evidentiary hearing on the 3.850 motion, shows that the jury found the defendant “guilty of attempted second-de…
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Fischer v. State, 488 So. 2d 145 (Fla. 3d DCA 1986)…leads to the inescapable conclusion that defendant possessed a firearm during the commission of the crime, the jury need not render a specific verdict finding possession for enhancement of a sentence. As the fifth district states in Henry v. State, 483 So. 2d 860 (Fla. 5th DCA 1986), the supreme court in State v. Overfelt, 457 So. 2d 1385 (Fla.1984), cited and implicitly overruled Tindall. . § 810.02(3), Fla.Stat. (1983).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983)