MORRIS SELLER FREENEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for manslaughter and battery was affirmed, but the three-year mandatory minimum sentence imposed under section 775.087(2) was vacated because manslaughter is not enumerated in that statute, and an improper $200 cost was reversed.
A mandatory minimum sentence under section 775.087(2) cannot be imposed for manslaughter because that statute lists only enumerated offenses, which do not include manslaughter.
[1] Section 775.087(2), Florida Statutes, which imposes a mandatory minimum sentence for possession of a firearm during commission of an enumerated offense, does not apply to…
[2] A $200 cost under section 27.3455, Florida Statutes (1985), may not be imposed against a defendant whose crime was committed prior to July 1, 1985.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of manslaughter and battery. The trial court imposed a three-year mandatory minimum sentence based on appellant's possession o…
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DAUKSCH, Judge.
This is an appeal from a judgment of conviction and sentence for manslaughter and battery. Two points were raised on appeal. We find merit only in the contention that the trial court erred in imposing a three year minimum mandatory sentence under section 775.087(2), Florida Statutes (1983) because appellant possessed a firearm during the commission of the offense.
The statute lists “any murder” but does not include manslaughter. Since manslaughter is not specifically included in the enumerated offenses under section 775.-087(2), the minimum mandatory provision may not be applied. Strahorn v. State, 436 So. 2d 447 (Fla. 2d DCA 1983); Akins v. State, 366 So. 2d 1262 (Fla. 4th DCA 1979); Jones v. State, 356 So. 2d 4 (Fla. 4th DCA 1977); Rozier v. State, 353 So. 2d 193 (Fla. 3d DCA 1977); Biles v. State, 349 So. 2d 662 (Fla. 4th DCA 1977). Therefore, we vacate the sentence and remand to the trial court for entry of a sentence which omits the three year mandatory sentence.
It is also noted sua sponte that the trial court improperly imposed a $200 cost pursuant to section 27.3455, Florida Statutes (1985). This court has recently held that this cost may not be imposed against a defendant whose crime was committed pri-or to July 1, 1985. Robinson v. State, 488 So. 2d 925 (Fla. 5th DCA 1986); Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986). Accordingly, this cost must be reversed.
SENTENCE VACATED and REMANDED.
COBB and SHARP, JJ., concur.
DAUKSCH, Judge.
We certify to the supreme court the following question to be of great public importance:
DOES THE APPLICATION OF SECTION 27.3455, FLORIDA STATUTES (1985) TO CRIMES COMMITTED PRIOR TO THE EFFECTIVE DATE OF THE STATUTE VIOLATE THE EX POST FACTO PROVISIONS OF THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF FLORIDA, OR DOES THE STATUTE MERELY EFFECT A PROCEDURAL CHANGE AS IS PERMITTED UNDER STATE V. JACKSON, 478 So. 2d 1054 (FLA.1985)?
COBB and SHARP, JJ., concur.
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State v. Yost, 507 So. 2d 1099 (Fla. 1987)…ied herein, we approve the decisions below and remand for further proceedings consistent with this opinion. It is so ordered. MCDONALD, C.J„ and OVERTON, EHRLICH, BARKETT and KOGAN, JJ., concur. . The four consolidated cases are Freeney v. State, 493 So. 2d 9 (Fla. 5th DCA 1986); Miller v. State, 492 So. 2d 1191 (Fla. 5th DCA 1986); Moseley v. State, 491 So. 2d 336 (Fla. 3d DCA 1986); Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986). The certified question is: DOES THE APPLICATION OF SECTION 27.-3455,…
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Stone v. State, 500 So. 2d 572 (Fla. 2d DCA 1986)…86); Williams v. State, 492 So. 2d 784 (Fla. 5th DCA 1986); Signorelli v. State, 491 So. 2d 349 (Fla. 4th DCA 1986); Moseley v. State, 491 So. 2d 336 (Fla. 3d DCA 1986); McDowell v. [*574] State, 491 So. 2d 594 (Fla. 5th DCA 1986); Freeney v. State, 493 So. 2d 9 (Fla. 5th DCA 1986); Williams v. State, 492 So. 2d 1098 (Fla. 5th DCA 1986); Robinson v. State, 488 So. 2d 925 (Fla. 5th DCA 1986); Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986).…
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Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986)…n 27.3455, Florida Statutes (1985), violates constitutional ex post facto restrictions because the crimes for which defendant was convicted were committed prior to the effective date of the statute, and thus were illegally imposed. Freeney v. State, 493 So. 2d 9 (Fla. 5th DCA 1986); Yost v. State, 489 So. 2d 131 [*996] (Fla. 5th DCA 1986). We consider this to be the type of sentencing error which may be raised on appeal notwithstanding the defendant’s failure to object at sentencing because it results in an…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986)
- Wanita Robinson v. State, 488 So. 2d 925 (Fla. 5th DCA 1986)
- Jones v. State, 356 So. 2d 4 (Fla. 4th DCA 1977)
- Strahorn v. State, 436 So. 2d 447 (Fla. 2d DCA 1983)
- Dixie Belle Biles v. State, 349 So. 2d 662 (Fla. 4th DCA 1977)
- Rozier v. State, 353 So. 2d 193 (Fla. 3d DCA 1977)
- Akins v. State, 366 So. 2d 1262 (Fla. 4th DCA 1979)
- McCONNELL v. City OF Casselberry, 366 So. 2d 1262 (Fla. 4th DCA 1979)