RAFAEL FONSECA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that convictions for both second-degree murder with a firearm and unlawful possession of a firearm during a criminal offense are impermissible, and that sentencing guideline departures require written reasons.
Defendant was convicted of second-degree murder with a firearm and possession of a firearm while engaged in a criminal offense. The trial court depart…
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PER CURIAM.
The defendant, Rafael Fonseca, appeals his convictions and sentences for second-degree murder with a firearm and possession of a firearm while engaged in a criminal offense. We reverse in part, affirm in part and remand.
The defendant contends, and the State properly concedes, that the trial court erred in entering convictions for both second-degree murder with a firearm and unlawful possession of a firearm while engaged in a criminal offense. See Carawan v. State, 515 So. 2d 161 (Fla.1987). Accordingly, the defendant’s conviction for unlawful possession of a firearm while engaged in a criminal offense is reversed.
Additionally, the trial court erred in departing from the sentencing guidelines without providing written reasons. See Pope v. State, 561 So. 2d 554 (Fla.1990). Accordingly, this cause is remanded for imposition of a sentence within the sentencing guidelines.
As in State v. Smith (Fla. 3d DCA case no. 89-3012, opinion filed June 5, 1990) [15 F.L.W. D1520], and State v. Whipple (Fla. 3d DCA case no. 89-2606, opinion filed July 24, 1990) [15 F.L.W. D1916], we recognize that the defendant was sentenced prior to the issuance of the Pope decision. Since we are applying Pope retroactively, we certify the following question to the Supreme Court of Florida as a question of great public importance:
SHOULD POPE V. STATE BE APPLIED RETROACTIVELY TO SENTENCES IMPOSED PRIOR TO APRIL 26, 1990?
The defendant’s remaining points raised on appeal lack merit.
Affirmed in part, reversed in part and remanded,
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State v. Fonseca, 598 So. 2d 1069 (Fla. 1992)…PER CURIAM. We have for review Fonseca v. State, 570 So. 2d 424, 425 (Fla. 3d DCA 1990), which certified the same question of great public importance answered in Smith v. State, 598 So. 2d 1063 (Fla.1992): Should Pope v. State [, 561 So. 2d 554 (Fla.1990),] be applied retroactively to sentences imposed prior t…
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Fonseca v. State, 614 So. 2d 33 (Fla. 3d DCA 1993)…sly affirmed the defendant’s conviction for second-degree murder with a firearm, reversed his conviction for unlawful possession of a firearm while engaged in a criminal offense and remanded for resentenc-ing within the guidelines. Fonseca v. State, 570 So. 2d 424 (Fla. 3d DCA1990). The Florida Supreme Court quashed this court’s opinion and remanded for further reconsideration. State v. Fonseca, 598 So. 2d 1069 (Fla. 1992). On remand, based on the State’s proper confession of error, we once again affirm the d…
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DAY v. State, 573 So. 2d 1022 (Fla. 2d DCA 1991)…nes. Since Day’s sen-fences were imposed before Pope, the state argues that Pope should only be applied prospectively. We disagree and join with the Third District Court which has concluded that Pope should apply retroactively. See Fonseca v. State, 570 So. 2d 424 (Fla. 3d DCA 1990). Reversed and remanded with directions to impose a guidelines sentence. SCHOONOVER, C.J., and PATTERSON, J., concur. . See Day v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988), review denied, 545 So. 2d 869 (Fla.1989).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Pope v. State, 561 So. 2d 554 (Fla. 1990)