THE STATE OF FLORIDA, APPELLANT,
v.
ANIBAL RODRIGUEZ, APPELLEE
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The State appealed an order granting post-conviction relief under Rule 3.850 where the trial court removed a firearm enhancement from the defendant's attempted first-degree murder sentence. The court affirmed, holding that Florida's sentencing enhancement statute requires the defendant to personally possess the weapon, and the defendant could not be enhanced where his codefendant had exclusive possession of the firearm.
The court affirmed the trial court's order granting post-conviction relief and striking the firearm enhancement. A defendant cannot be enhanced under section 775.087(1) unless the defendant personally possesses the weapon during the commission of the crime, and constructive possession by a codefendant does not satisfy this requirement.
[1] Felony sentence enhancement under Florida Statutes section 775.087(1) requires that the defendant personally possess the weapon during the commission of the crime.
[2] A defendant cannot be subject to felony reclassification when a codefendant had exclusive possession of a firearm during the commission of the crime for which the defenda…
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Join FLexlaw to unlock all legal intelligence“the enhancement provisions of section 775.-087(1), Florida Statutes (1977), ... require that the defendant personally possess the weapon during the commission of the crime involved.”
Establishes the controlling legal standard that personal possession by the defendant is required for firearm enhancement, not constructive possession or codefendant possession.
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Join FLexlaw to unlock all legal intelligenceDefendant Rodriguez was convicted of attempted first-degree murder after fleeing police at high speed in a vehicle. During the chase, Rodriguez's pass…
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PER CURIAM.
The State appeals an order granting relief under Rule 3.850, Florida Rules of Criminal Procedure. We affirm.
Defendant was convicted of attempted first degree murder. The evidence showed that when police attempted to pull over defendant’s vehicle, defendant fled at high speed. During the chase, the passenger picked up a rifle and began shooting at the pursuing officers.1 Upon conviction, defendant’s sentence was enhanced pursuant to subsection 775.087(1), Florida Statutes (1983), which provided for enhancement of the degree of felony when “[t]he defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm....” The defendant was convicted of two counts of attempted first degree murder, and sentenced pursuant to the statute just cited. By motion for post-conviction relief he asserted that the enhancement under the statute was illegal because the codefend-ant, not the defendant, possessed the firearm during the attempted murders. The trial court agreed and we affirm.
This court has previously ruled that “the enhancement provisions of section 775.-087(1), Florida Statutes (1977), ... require that the defendant personally possess the weapon during the commission of the crime involved.” Postell v. State, 383 So. 2d 1159, 1162 (Fla. 3d DCA 1980). The trial court’s ruling correctly followed Postell; Williagham v. State, 541 So. 2d 1240 (Fla. 2d DCA), review denied, 548 So. 2d 663 (Fla.1989); and Ngai v. State, 556 So. 2d 1130, 1131 (Fla. 3d DCA 1989).
The State asserts that if we sustain the trial court’s ruling this decision will conflict with Menendez v. State, 521 So. 2d 210 (Fla. 1st DCA 1988). We do not agree. This case is distinguishable from Menendez, in which the defendant was convicted of trafficking in cocaine while in possession of a firearm. In that case the defendant constructively possessed a firearm while the elements of the crime of trafficking were committed. Id. at 212.
In this case the defendant, Rodriguez, was convicted of attempted first degree murder. The State argues that, like the defendant in Menendez, Rodriguez constructively possessed the gun during the commission of the attempted murder. However, while the crime of attempted murder was being committed in the present ease, Rodriguez’ codefendant was in exclusive possession of the gun. This case is factually similar to Willingham v. State, in which the defendant’s codefendant had possession of a gun during a drug transaction. 541 So. 2d at 1241. The court held that the defendant could not be reclassified to a higher felony when his codefendant had exclusive possession of a firearm during the commission of the crime for which the defendant was charged.2 Id. at 1241-42.
We therefore affirm the trial court order. . The facts of this case are set forth in Rodriguez v. State, 528 So. 2d 1373 (Fla. 3d DCA 1988).
. The attempted murder in this case occurred when Rodriguez' codefendant was shooting at the police, not when Rodriguez and his code-fendant were trying to evade the police, at which time the rifle was apparently lying on the seat between the occupants of the car.
ON MOTION FOR REHEARING AND CERTIFICATION
PER CURIAM.
We deny the motion for rehearing but certify the following question of great public importance:
Does the enhancement provision of subsection 775.087(1), Florida Statutes (1983), extend to persons who do not actually possess the weapon but who commit an overt act in furtherance of its use by a coperpetrator?
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Anibal Rodriguez, 602 So. 2d 1270 (Fla. 1992)…OVERTON, Justice. We have for review State v. Rodriguez, 582 So. 2d 1189 (Fla. 3d DCA 1991), in which the Third District Court of Appeal certified the following question as being of great public importance: Does the enhancement provision of subsection 775.087(1), Florida Statutes (1983), extend to persons who do not act…
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Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)…, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense. . Rodriguez actually arose out of our court. State v. Rodriguez, 582 So. 2d 1189 (Fla. 3d DCA 1991). In that case, the police attempted to pull Rodriguez's car over and a high speed chase ensued. During the chase, a passenger in Rodriguez's car picked up a rifle from the car seat and shot at the police. At [*934] trial, Rodrigue…
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Robins v. State, 587 So. 2d 581 (Fla. 1st DCA 1991)…), in which the court held that application of section 775.087(1) requires proof that the defendant actually carried or used a weapon during the course of an offense. See also Ngai v. State, 556 So. 2d 1130 (Fla. 3d DCA 1989) and State v. Rodriguez, 582 So. 2d 1189 (Fla. 3d DCA 1991). In Rodriguez, the defendant led police on a high speed chase while his accomplice shot at them. Under the principal theory, the defendant was convicted of attempted first-degree murder which was reclassified [*583] under section…
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
- Eve Postell v. State, 383 So. 2d 1159 (Fla. 3d DCA 1980)
- Menendez v. State, 521 So. 2d 210 (Fla. 1st DCA 1988)
- Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989)
- Ngai v. State, 556 So. 2d 1130 (Fla. 3d DCA 1989)
- Anibal Rodriguez v. State, 528 So. 2d 1373 (Fla. 3d DCA 1988)