DONALD FLOYD JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Johnson appealed his convictions and sentences in four robbery cases. The court affirmed his convictions and sentences in three simple robbery cases but quashed and remanded the sentence in a fourth case where the trial court erred in classifying the robbery as a first-degree felony when the evidence did not establish Johnson carried or used a weapon.
Johnson's sentences in the three simple robbery cases are affirmed. The forty-year sentence in case 88-10386 is quashed because the trial court erred in classifying the robbery as a first-degree felony. Since the evidence did not establish Johnson carried or used a weapon, the robbery constitutes a second-degree felony under section 812.13(2)(c), and Johnson should be sentenced as a second-degree habitual felony offender to no more than thirty years.
[1] A habitual offender statute is constitutional against challenges based on equal protection and due process grounds not previously addressed by appellate courts.
[2] A robbery conviction is a second-degree felony if the offender did not carry or use a weapon during the commission of the offense.
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“Johnson was charged with committing the robbery by threatening to use a weapon. The evidence did not establish Johnson actually carried or used a weapon. Nor did the jury find Johnson had or used a weapon.”
Establishes the factual basis for the error in sentencing classification—absence of evidence or jury finding regarding actual weapon possession.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson pleaded guilty to simple robbery in three cases and was convicted by jury of robbery with threat of a weapon in a fourth case (88-10386). In a…
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W. SHARP, Judge.
Johnson appeals his sentences and convictions in four cases.1 He pled guilty to simple robbery in three of the cases. He was tried by a jury and found guilty in the fourth case, 88-10386, of robbery with threat of a weapon.2 In all cases, the state filed notices of intent to classify Johnson as a habitual offender pursuant to section 775.084, Florida Statutes (Supp.1988). He was sentenced to thirty years in prison (with a ten year minimum mandatory sentence) in the three simple robbery cases, and to forty years imprisonment with a fifteen year minimum mandatory sentence in 88-10386. We affirm Johnson’s convictions and sentences in the simple robbery cases, but we quash the forty year sentence in 88-10386 and remand for resentencing.
Johnson challenges all of his sentences on constitutional grounds. He claims section 775.084 (the habitual felony and habitual violent felony offender statute) is unconstitutional on the same grounds we ruled otherwise in King v. State, 557 So. 2d 899 (Fla. 5th DCA 1990). He also challenges section 775.084 on equal protection and due process grounds which were not addressed in King. We find no merit to his position.
We agree that the trial court erred in imposing the sentence in case number 88-10386 as a first-degree felony. Johnson was charged with committing the robbery by threatening to use a weapon. The evidence did not establish Johnson actually carried or used a weapon. Nor did the jury find Johnson had or used a weapon.
Spellman v. State, 529 So. 2d 305 (Fla. 1st DCA), rev. denied, 536 So. 2d 245 (Fla.1988) and Hamilton v. State, 494 So. 2d 505 (Fla. 2d DCA 1986), hold that section 812.-13(2)(c) “specifically provides that if in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree.” Accordingly the enhancement statute, section 775.087(1) does not apply to move the degree of the felony up from a second degree to a first degree felony. We agree. Cf. Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984).
Accordingly, Johnson should be sentenced in case number 88-10386 as a second degree habitual felony offender (§ 775.084(4)(a)-(d)), to no more than thirty years. We quash the sentence in case number 88-10386 and remand for resentencing. We affirm the sentences in case numbers 88-10486, 88-10608, and 89-1231.
AFFIRMED in part, QUASHED in part and REMANDED for resentencing in ease number 88-10386.
COWART and GOSHORN, JJ., concur. . Case Nos. CF 88-10486, 88-10608, 88-10386, and 89-1231.
. § 812.13(2)(a), Fla.Stat. (1987).
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Citator
Cited By
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Wells v. State, 638 So. 2d 1064 (Fla. 1st DCA 1994)…ERVIN, Judge. Appellant’s convictions and sentences for first-degree robbery and burglary are reversed in accordance with Spellman v. State, 529 So. 2d 305 (Fla. 1st DCA), review denied, 536 So. 2d 245 (Fla.1988); Johnson v. State, 560 So. 2d 1379 (Fla. 5th DCA 1990); and Hamilton v. State, 494 So. 2d 505 (Fla. 2d DCA 1986), and the cause is remanded with directions that appellant be adjudged guilty of second-degree robbery and burglary and resentenced accordingly. REVERSED and REMANDED for…
Authorities Cited
- Caracciolo v. State, 557 So. 2d 899 (Fla. 4th DCA 1990)
- Brewster v. State, 448 So. 2d 628 (Fla. 2d DCA 1984)
- Tondrick Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984)
- Hamilton v. State, 494 So. 2d 505 (Fla. 2d DCA 1986)
- Spellman v. State, 529 So. 2d 305 (Fla. 1st DCA 1988)