JAMES LAMAR WILLIAMS, A/K/A DONOVAN LAMAR DEMPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Lamar Williams appealed his convictions for attempted third-degree murder, felon in possession of a firearm, and tampering with physical evidence. The appellate court reversed the sentence for attempted third-degree murder due to improper weapon enhancement and remanded for resentencing, while affirming the other convictions and requiring the trial court to reconsider whether consecutive habitual offender sentences were appropriate.
The court reversed the sentence for attempted third-degree murder because the weapon enhancement was improper under Vickers v. State, as the use of a weapon was an essential element of the crime rather than a valid enhancing factor. On remand, the trial court must treat attempted third-degree murder as a third-degree felony and must determine whether two separate criminal episodes exist to justify consecutive habitual offender sentences or order them served concurrently.
[1] A conviction for attempted third-degree murder, which is a third-degree felony, cannot be enhanced to a second-degree felony based on the use of a weapon when the use of…
[2] Habitual offender sentences may be imposed consecutively only if the offenses arise from separate criminal episodes.
Previewing 2 of 3 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“The state concedes that under Vickers v. State, 630 So.2d 1229 (Fla. 2d DCA 1994), the enhancement was incorrect because the use of the weapon was an essential element of the crime charged.”
Establishes the legal error in weapon enhancement when the weapon is an essential element rather than a valid enhancement factor
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn February 1992, Williams attempted to commit third-degree murder while carrying a firearm. A jury convicted him of the attempted murder and specific…
The full statement of facts, procedural history, and disposition for this case are member content.
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ALTENBERND, Judge.
James Lamar Williams appeals his convictions and sentences for attempted third-degree murder, felon in possession of a firearm, and tampering with physical evidence. We reverse the sentence for attempted third-degree murder and remand for resentencing on that charge.
A jury convicted the defendant of attempted third-degree murder and specifically found that he carried a firearm when he committed the offense in February 1992. Because of his prior record, the jury convicted him of possession of a firearm by a felon. The jury also convicted him of tampering with the evidence because he hid the firearm in some bushes at or near the scene of the crime while fleeing from the police. The trial court sentenced the defendant as a habitual offender for attempted third-degree murder with a firearm and ordered thirty years’ imprisonment with a three-year minimum mandatory term. It also imposed a concurrent thirty-year habitual offender sentence for felon in possession of a firearm and a consecutive ten-year habitual offender sentence for tampering.
Third-degree murder is a second-degree felony. § 782.04(4), Fla.Stat. (1991). Attempted third-degree murder is, thus, a third-degree felony. § 777.04(4)(c), Fla.Stat. (1991). The trial court enhanced this offense to a second-degree felony for the use of a weapon. § 775.087, Fla.Stat. (1991). The state concedes that under Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994), the enhancement was incorrect because the use of the weapon was an essential element of the crime charged. Thus, we reverse the sentence for attempted third-degree murder. On resentencing, this offense must be treated as a third-degree felony.
We find no error in the trial court’s decision to utilize habitual offender sentencing in this case. We note that the trial court imposed the consecutive habitual felony offender sentence prior to the supreme court’s decision in Hale v. State, 630 So. 2d 521 (Fla. 1993). From this record, we cannot determine whether the tampering occurred under circumstances sufficiently separate from the attempted murder to permit a finding of two criminal episodes. Accordingly, on remand, the trial court must either determine that this case involves two criminal episodes or order the habitual offender sentences to be served concurrently.
Affirmed in part, reversed in part, and remanded.
DANAHY, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994)