DARYL ANTHONY ROULHAC, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daryl Anthony Roulhac appealed his convictions for attempted robbery with a firearm and attempted first-degree felony murder with a firearm. The appellate court affirmed the convictions and the habitual offender sentencing for attempted felony murder, but reversed the imposition of consecutive habitual offender sentences and remanded for resentencing to impose concurrent sentences.
The court held that the trial court properly sentenced appellant as a habitual offender for attempted first-degree felony murder with a firearm because reclassification under section 775.087, Florida Statutes, is improper when the use of a firearm is an essential element of the crime charged. However, the court held that consecutive habitual offender sentences may not be imposed for crimes arising out of a single criminal episode.
[1] A trial court properly sentences a defendant as an habitual offender for attempted first-degree felony murder with a firearm when the underlying felony requires the use o…
[2] Reclassification of a felony under section 775.087, Florida Statutes, is improper when the use of a firearm is an essential element of the crime charged.
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Join FLexlaw to unlock all legal intelligence“Reclassification under section 775.087, Florida Statutes, is improper when the use of a firearm is an essential element of the crime charged.”
Establishes the legal standard for when firearm enhancement does not apply to habitual offender sentencing
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Join FLexlaw to unlock all legal intelligenceAppellant Daryl Anthony Roulhac was convicted of attempted robbery with a firearm and attempted first-degree felony murder with a firearm arising from…
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PER CURIAM.
Appellant, Daryl Anthony Roulhac, appeals from his convictions and sentences for attempted robbery with a firearm and attempted first-degree felony murder with a firearm arising out of a single criminal episode. We affirm the convictions and the trial court’s sentencing of appellant as an habitual offender for the offense of attempted first-degree felony murder with a firearm. Because the trial court erred in imposing consecutive habitual offender sentences for crimes arising out of a single criminal episode, we reverse and remand for resentencing. Appellant argues that the trial court erred in sentencing him as an habitual offender for the offense of attempted first-degree felony murder with a firearm. Appellant asserts that, under section 775.087, Florida Statutes, the conviction for attempted first-degree felony murder with a firearm must be enhanced to a life felony and that life felonies are exempt from the operation of the habitual offender statute. We hold that the trial court properly sentenced appellant ' as an habitual offender for the offense of attempted first-degree felony murder with a firearm. Reclassification under section 775.087, Florida Statutes, is improper when the use of a firearm is an essential element of the crime charged. Lamont v. State, 610 So. 2d 435 (Fla.1992); Webb v. State, 410 So. 2d 944 (Fla. 1st DCA 1982), rev. denied, 421 So. 2d 68 (Fla.1982). In the present case, appellant was charged with attempted felony murder with the underlying felony being attempted robbery with a firearm. Count II of the information specifically alleged that appellant:
[W]hile engaged in the perpetration of, or an attempt to perpetrate a felony, to-wit: robbery of William B. Thomas, and in such attempt did an act toward the commission of such offense, to-wit: shooting the said William B. Thomas, but was prevented or faded in the execution of same, and during the commission of such felony the defendant carried, displayed, used, threatened or attempted to use a weapon or firearm,
It is apparent from both the information and the jury’s verdict that appellant was found guilty of the underlying felony of attempted robbery with a firearm under section 812.13(2)(a), Florida Statutes. Conviction under this section of the statute requires use of a firearm. Williams v. State, 590 So. 2d 526 (Fla. 2d DCA 1991); Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981), reversed on other grounds, 420 So. 2d 877 (Fla.1982). Thus, reclassification was not applicable and appellant was correctly sentenced as an habitual offender under section 775.087, Florida Statutes.
Appellant argues that the trial court erred in imposing consecutive habitual offender sentences for crimes committed in a single episode. The state concedes error in the trial court’s imposition of consecutive habitual offender sentences based on the decision of the Florida Supreme Court in Brooks v. State, 630 So. 2d 527 (Fla.1993) (consecutive enhanced sentences may not be imposed under habitual offender statute for crimes arising out of a single criminal episode).
Accordingly, we reverse and remand with instructions that appellant’s habitual offender sentences be imposed to run concurrently. We affirm in all other respects.
ZEHMER, C.J., and BOOTH and DAVIS, JJ., concur.
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Cited By
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Traylor v. State, 785 So. 2d 1179 (Fla. 2000)…pted felony murder include the elements of the actual underlying felony. Gonzalez, 585 So. 2d at 933 (adopting Gonzalez v. State, 569 So. 2d 782, 784-85 (Fla. 4th DCA 1990) (Anstead, J., concurring in part and dissenting in part)); Roulhac v. State, 648 So. 2d 203, 204 (Fla. 1st DCA 1994); Wallace v. State, 665 So. 2d 313, 314 (Fla. 2d DCA 1995); Pinkerton v. State, 534 So. 2d 425, 426 (Fla. 5th DCA 1988); Webb v. State, 410 So. 2d 944, 945 (Fla. 1st DCA 1982). Since Traylor’s burglary charge resulted in a no…
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Wallace v. State, 665 So. 2d 313 (Fla. 2d DCA 1995)…ion based upon the use of a firearm. See Gonzalez v. State, 585 So. 2d 932 (Fla.1991) (incorporating the concurring in part and dissenting in part opinion of Judge An-stead in Gonzalez v. State, 569 So. 2d 782 (Fla. 4th DCA 1990)); Roulhac v. State, 648 So. 2d 203 (Fla. 1st DCA 1994). Because the trial court erred in enhancing the felony murder conviction from a felony in the first degree to a life felony, we reverse and remand for resentencing. LAZZARA and QUINCE, JJ., concur.…
Authorities Cited
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)
- Brooks v. State, 630 So. 2d 527 (Fla. 1993)
- Mallory Webb, III v. State, 410 So. 2d 944 (Fla. 1st DCA 1982)
- Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981)
- Skipper v. State, 420 So. 2d 877 (Fla. 1982)
- Williams v. State, 590 So. 2d 526 (Fla. 2d DCA 1991)