EDDIE MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eddie Moore appealed his convictions for second degree murder with a firearm and aggravated battery with a firearm. The court affirmed the convictions but reversed the sentences, correcting the trial court's erroneous sentencing enhancements and habitual offender designation on the murder conviction.
The court affirmed the convictions but reversed sentencing on the murder conviction because second degree murder with a firearm is a life felony and cannot be sentenced as a habitual offender enhancement. The court also corrected the aggravated battery conviction from first degree to second degree felony because the firearm use was an essential element of the offense and could not be used for enhancement.
[1] Second degree murder with a firearm constitutes a life felony, and a defendant cannot be sentenced as a habitual offender for this offense.
[2] A trial court does not err by failing to find a predicate conviction for habitual offender sentencing had not been pardoned or set aside.
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Join FLexlaw to unlock all legal intelligence“Second degree murder with a firearm constitutes a life felony. The trial court, therefore, erred when it sentenced him as a habitual offender on this conviction.”
Establishes that life felonies cannot receive habitual offender enhancements
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Join FLexlaw to unlock all legal intelligenceEddie Moore was convicted of second degree murder with a firearm and aggravated battery with a firearm. The trial court sentenced him as a habitual of…
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DELL, Judge.
We affirm appellant’s convictions for second degree murder with a firearm and aggravated battery with a firearm. We reverse appellant’s sentence for second degree murder with a firearm. Second degree murder with a firearm constitutes a life felony. The trial court, therefore, erred when it sentenced him as a habitual offender on this conviction. See Lamont v. State, 610 So. 2d 435 (Fla.1992).
We find no error in appellant’s sentence as a habitual offender on his conviction of aggravated battery with a firearm. He has not demonstrated reversible error in his contention that the trial court erred when it failed to find his predicate conviction had not been pardoned or set aside. See State v. Rucker, 613 So. 2d 460 (Fla.1993). We also reject his contention that the habitual offender statute is unconstitutional. See Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA), cause dismissed, 564 So. 2d 488 (Fla.1990); accord Johnson v. State, 564 So. 2d 1174 (Fla. 4th DCA 1990), review denied, 576 So. 2d 288 (Fla.1991); Mitchell v. State, 575 So. 2d 798 (Fla. 4th DCA 1991); Crawley v. State, 578 So. 2d 16 (Fla. 4th DCA 1991).
Finally, it appears from the face of the record that the trial court instructed the jury on both aggravated battery based upon great bodily harm and aggravated battery based upon the use of a deadly weapon. See § 784.045(l)(a), Fla. Stat.(1991). The jury found appellant guilty of aggravated battery with a firearm. The trial court thereupon enhanced his conviction from a second degree felony to a first degree felony pursuant to section 775.087(l)(b), Florida Statutes (1991). Since the use of a firearm was an essential element of the offense, the trial court erred when it enhanced appellant’s sentence on this conviction to a first degree felony. See Lareau v. State, 573 So. 2d 813 (Fla.1991). Although appellant has not raised this point on appeal, we address the trial court’s error in the interest of justice and so that on resentencing it may be corrected.
Accordingly, we direct the trial court to correct the final judgment adjudicating guilt to reflect appellant’s conviction for second degree murder with a firearm as a life felony rather than a first degree felony, to change his conviction of aggravated battery with a firearm from a first degree felony to a second degree felony and to resentence appellant consistent with these changes.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
WARNER and POLEN, JJ., concur.
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Laines v. State, 662 So. 2d 1248 (Fla. 3d DCA 1995)…believe that the extremely clear statement by the legislature in subsection 775.021(4)(a), as explained by the Florida Supreme Court in Smith, requires that we affirm the separate convictions and sentences in this case. See generally Moore v. State, 616 So. 2d 168, 169 (Fla. 4th DCA 1993) (“We affirm appellant’s convictions for second degree murder with a firearm and aggravated battery with a firearm.”). I agree with the majority that the departure sentence for the second degree murder [*1253] conviction mus…
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Montgomery v. State, 704 So. 2d 548 (Fla. 1st DCA 1997)…found him guilty of aggravated battery causing great bodily harm. We agree. The verdict herein establishes only that Montgomery was convicted of aggravated battery with a firearm. The circumstances herein are similar to the facts in Moore v. State, 616 So. 2d 168 (Fla. 4th DCA 1993). Therein, the trial court instructed the jury on both aggravated battery based on great bodily harm and aggravated battery based upon the use of a deadly weapon. The jury found the defendant guilty of aggravated battery with a fi…
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Moore v. State, 634 So. 2d 214 (Fla. 4th DCA 1994)…PER CURIAM. Appellant, Eddie Moore appeals his sentence after remand, raising three points on appeal. First, Moore contends and .the state concedes, that in accordance with this court’s prior mandate in Moore v. State, 616 So. 2d 168 (Fla. 4th DCA 1993), the trial court failed to correct Moore’s judgment of conviction and sentence to reflect that aggravated battery with a firearm was a second degree rather than a first degree felony. Thus, we reverse and remand for the correctio…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Flowers v. State, 559 So. 2d 289 (Fla. 4th DCA 1990)
- Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA 1990)
- Delrick Johnson v. State, 564 So. 2d 1174 (Fla. 4th DCA 1990)
- Jones v. State, 575 So. 2d 798 (Fla. 4th DCA 1991)
- SUN Bank/Miami, N.A. v. Arnold, 575 So. 2d 798 (Fla. 4th DCA 1991)
- Crawley v. State, 578 So. 2d 16 (Fla. 4th DCA 1991)