RIGOBERTO MONTOYA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Montoya appeals his convictions for Attempted Second Degree Murder with a Firearm and Unlawful Possession of a Firearm While Engaged in a Criminal Offense. The court affirms his convictions and sentences, finding no merit in his three appellate arguments and granting appointed counsel's motion to withdraw under Anders v. California.
The court held that: (1) the jury verdict was supported by substantial competent evidence and will not be disturbed on appeal; (2) Montoya waived the instruction on third degree murder by failing to request it at trial; and (3) the sentence fell within sentencing guidelines because the firearm use reclassified the attempt offense to a first degree felony.
[1] A jury's verdict will not be disturbed on appeal if supported by substantial competent evidence.
[2] A defendant waives the right to a jury instruction on a lesser included offense by failing to request it at trial.
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Join FLexlaw to unlock all legal intelligence“It is the jury's function to assess and evaluate the credibility of the witnesses.”
Establishes the standard of review for sufficiency of evidence claims, giving deference to jury credibility determinations.
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Join FLexlaw to unlock all legal intelligenceMontoya was convicted by jury of Attempted Second Degree Murder with a Firearm and Unlawful Possession of a Firearm While Engaged in a Criminal Offens…
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BASKIN, Judge.
Montoya appeals from his convictions of and sentences for Attempted Second Degree Murder with a Firearm and Unlawful Possession of a Firearm While Engaged in a Criminal Offense. The assistant public defender appointed to represent Montoya filed a motion and brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), requesting leave to withdraw as counsel on the basis that the appeal lacks merit. On consideration of the motion to withdraw, this court withheld ruling, ordered counsel to furnish Montoya a copy of the memorandum brief, and allowed Montoya thirty days in which to file a statement of points for this court to consider. Montoya filed a brief raising three issues. Although we find no merit in the issues raised by Montoya and grant the assistant public defender’s motion to withdraw, we briefly address each point raised.
First, Montoya asserts that the evidence was insufficient to convict him. We disagree. A review of the record reveals that the evidence before the jury was conflicting. It is the jury’s function to assess and evaluate the credibility of the witnesses. Rodriguez v. State, 436 So. 2d 219 (Fla. 3d DCA 1983), review denied, 447 So. 2d 888 (Fla.1984). Where, as here, the jury verdict is supported by substantial competent evidence, the determination will not be disturbed on appeal. Toole v. State, 472 So. 2d 1174, 1176 (Fla.1985); Heiney v. State, 447 So. 2d 210, 212 (Fla.), cert. denied, — U.S. —, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Tibbs v. State, 397 So. 2d 1120, 1123 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
Second, Montoya argues that the trial court erred in failing to instruct the jury on the lesser included offense of third degree murder. The record reveals that Montoya failed to request an instruction on third degree murder; thus, Montoya waived his entitlement to such an instruction. Jones v. State, 484 So. 2d 577 (Fla.1986); Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986).
Third, Montoya argues that his sentence exceeds the recommended guidelines. We disagree. Montoya was convicted of attempted second degree murder with a firearm. Second degree murder is a first degree felony. § 782.04(2), Fla.Stat. (1983). Although Montoya correctly asserts that an attempt reduces the offense to a second degree felony, § 777.04(4)(b), Fla.Stat. (1983), Montoya overlooks the statutory reclassification of the offense to a first degree felony based on the use of a firearm. § 775.087(l)(b), Fla.Stat. (1983). Thus, the sentence imposed fell within the sentencing guidelines. For these reasons we affirm the convictions and sentences.
Affirmed.
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Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989)…lude a finding of error in this regard on the part of the trial court. Lawrence v. State, 330 So. 2d 160 (Fla. 1st DCA 1976); Mitchell v. State, 321 So. 2d 108 (Fla. 1st DCA 1975), cert. dismissed, 345 So. 2d 425 (Fla.1977). Accord Montoya v. State, 489 So. 2d 794 (Fla. 3d DCA), review denied, 496 So. 2d 143 (Fla.1986) (failure to request a jury instruction amounts to waiver of an entitlement to such instruction). In State v. Daophin, 533 So. 2d 761, 762 fn. 2 (Fla.1988), the court noted that the standard ju…
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Ahlberg v. State, 541 So. 2d 775 (Fla. 3d DCA 1989)…79). This court has held that whether the evidence was sufficient to support convictions of attempted second-degree murder with a firearm and unlawful possession of a firearm while engaged in a criminal offense is a jury question. Montoya v. State, 489 So. 2d 794, 795 (Fla. 3d DCA), review denied, 496 So. 2d 143 (Fla.1986). In the instant case, the victim testified that the defendant carried “a gun of some sort. That’s a revolver type.” In defendant’s confession to the police, he admitted his possession of a…
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Harris v. State, 650 So. 2d 639 (Fla. 4th DCA 1995)…the crime. We cannot tell from the opinions on which the state relies whether the specific argument which the defendant advances was made in those eases. However, the courts in Howe v. State, 596 So. 2d 1227 (Fla.2d DCA 1992), and Montoya v. State, 489 So. 2d 794 (Fla.3d DCA 1986), did use the method of calculation used by the trial court here. This conviction was properly scored as a first degree felony. Defendant also argues that the trial court erroneously classified his 1966 conviction for second degree…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Tibbs v. Florida, 457 U.S. 31 (U.S. 1982)
- Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)
- Heiney v. State, 447 So. 2d 210 (Fla. 1984)
- Toole v. State, 472 So. 2d 1174 (Fla. 1985)
- Jones v. State, 484 So. 2d 577 (Fla. 1986)
- Rodriguez v. State, 436 So. 2d 219 (Fla. 3d DCA 1983)
- Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986)