CURTIS DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Davis appealed the denial of his motion for post-conviction relief, challenging a thirty-year sentence imposed for attempted second-degree murder. The trial judge reclassified the offense from a second-degree felony (maximum 15 years) to a first-degree felony (maximum 30 years) based on firearm use. The court affirmed, finding the jury verdict sufficiently indicated the firearm element even without precise statutory language.
The trial court's denial of post-conviction relief was affirmed. The jury verdict showing a finding of guilt for attempted second-degree murder "with a firearm" was sufficient to comply with Overfelt's requirement of a jury finding on the firearm element, even though the verdict form did not use precise statutory language.
[1] A jury's verdict finding a defendant guilty of a crime "with a firearm" is sufficient to support a sentence enhancement for firearm use, even if the verdict form does not…
[2] A trial court may reclassify a second-degree felony as a first-degree felony when a firearm is used in the commission of the offense, pursuant to section 775.087(1), Flor…
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Join FLexlaw to unlock all legal intelligence“the jury must make the finding that a firearm was used in the commission of the offense by answering a special question on a special verdict form and the trial judge's finding that a firearm was used is insufficient to reclassify the offense”
Petitioner's argument citing State v. Overfelt regarding the requirement for jury findings on firearm use
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Join FLexlaw to unlock all legal intelligenceDavis was charged with attempted first-degree murder and convicted by jury of attempted second-degree murder. The trial judge reclassified the convict…
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COWART, Judge.
This is an appeal of a denial of a motion for post-conviction relief (Fla.R.Crim.P. 3.850) in which the petitioner claims that a thirty year sentence had been illegally imposed on him in that the punishment for his conviction for attempted second-degree murder (§§ 777.04(1) and 782.04(2), Fla. Stat.), nominally a second-degree felony, was improperly reclassified as a first-degree felony. The motion was denied after an evidentiary hearing.
Petitioner was charged with attempted first-degree murder and convicted of attempted second-degree murder. The trial judge reclassified the offense from a second-degree felony punishable by a maximum term of fifteen years imprisonment, §§ 777.04(4)(b) and 775.082(3)(c), Fla.Stat., to a first-degree felony punishable by a maximum term of thirty years imprisonment pursuant to section 775.087(1), Fla. Stat., on the ground that the petitioner used a firearm during the commission of the offense.
Petitioner contends that the jury must make the finding that a firearm was used in the commission of the offense by answering a special question on a special verdict form and the trial judge’s finding that a firearm was used is insufficient to reclassify the offense, citing State v. Overfelt, 457 So. 2d 1385 (Fla.1984). The State cites Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983), as authority for the proposition that a special jury finding is necessary only when the defendant is charged with a crime involving the use of a firearm, but convicted of a lesser included offense not requiring the use of a firearm.
Tindall v. State expressly disagreed with the holding in Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983), on this point, which was the very basis for the dissent of 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-degree murder with a firearm” rather than the alternative choice of “guilty of attempted second-degree murder without a firearm.” Although the verdict form did not use the precise language of the statute, we find it sufficient to comply with Overfelt, supra.
Accordingly, we affirm the trial court’s denial of petitioner’s motion for post-conviction relief.
AFFIRMED.
COBB, C.J., and ORFINGER, J., concur.
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State v. Jones, 536 So. 2d 1161 (Fla. 5th DCA 1988)…State v. Overfelt, 457 So. 2d 1385 (Fla.1984). However, this court has previously rejected this argument where the verdict form reflects the jury’s finding that defendant was found guilty of committing the crime “with a firearm.” See Davis v. State, 486 So. 2d 45 (Fla.5th DCA 1986). Cf. Gillis v. State, 486 So. 2d 706 (Fla. 5th DCA 1986). A jury finding of “guilty as charged” has been held a sufficient basis for an enhanced sentence because a firearm was used where, as here, the information specifically char…
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Gillis v. State, 486 So. 2d 706 (Fla. 5th DCA 1986)…illis. This verdict form would be sufficient to comply with the requirement of a jury finding of possession by Gillis pursuant to State v. Overfelt, 457 So. 2d 1385 (Fla.1984), if there had been but one defendant and one firearm. See Davis v. State, 486 So. 2d 45 (Fla. 5th DCA 1986). But under the instant facts, the verdict form lacks the requisite specificity because the firearm referred to in the verdict obviously was the one used and possessed by Thomas. Gillis was guilty as a principal. Hence, we must re…
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Mack v. State, 489 So. 2d 205 (Fla. 2d DCA 1986)…others have held, pursuant to the rule, that if violation of probation is the sole reason for departure, a trial judge cannot depart further than the one cell allowed by the rule. Stabler v. State, 486 So. 2d 51 (Fla. 1st DCA 1986); Davis v. State, 486 So. 2d 45 (Fla. 5th DCA 1986); Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986). Thus, the question before us is whether the trial judge expressed valid reasons for departure in this case other than the violation of probation. We note that although the defe…
Previewing 3 of 6 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)
- Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983)
- Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983)
- Henry v. State, 483 So. 2d 860 (Fla. 5th DCA 1986)