STATE OF FLORIDA, APPELLANT,
v.
ROBERT EUGENE DAVIDSON AND MARGARITO G. LIZARDO, APPELLEES

Fla. 2d DCA | 1995-12-27
Nos. 95-01166, 95-01399
SCHOONOVER, A.C.J., and ALTENBERND, J., concur.
666 So. 2d 941 Florida District Court of Appeal, Second District (1995) Caution
Cited by 34 cases

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Synopsis

The State appealed from sentencing orders in two consolidated cases where trial courts refused to apply Florida Rule of Criminal Procedure 3.702(d)(12) to add 25 points to defendants' guidelines scoresheets for possession of semiautomatic firearms during the commission of felonies. The appellate court reversed, holding that the rule applies even when the predicate offense itself involves firearm possession.


Holding

Rule 3.702(d)(12) applies and the 25 points must be assessed even when the predicate felony involves firearm possession. The rule does not create a separate crime but rather distinguishes between types of firearms and reflects legislative recognition of the need to deter through enhanced punishment the use of semiautomatic weapons. Adding points under the rule does not violate double jeopardy or improperly enlarge the sentence.


Headnotes

[1] Florida Rule of Criminal Procedure 3.702(d)(12) applies to sentencing computations for carrying a concealed semiautomatic firearm.

[2] Scoring additional sentence points for possession of a firearm during the commission of a felony does not violate double jeopardy.

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Key Quotes

“Rule 3.702(d)(12), unlike section 790.01(2), does not create a crime. Rather, the rule simply distinguishes between types of firearms and manifests nothing more than legislative recognition of the need to deter through enhanced punishment the use of semiautomatic firearms and their potential for the infliction of severe injury during the commission of criminal acts.”

Establishes the court's holding that the sentencing enhancement rule is not a separate crime-creating statute but a guideline reflecting legislative policy on firearm-based sentencing enhancements.

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Facts & Procedural History

Margarito Lizardo and Robert Davidson each pleaded guilty to carrying a concealed semiautomatic firearm in violation of section 790.01(2), Florida Sta…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

The state has appealed from the sentencing of Margarito Lizardo and Robert Davidson. We have consolidated these matters in order to pass upon the common issue of whether Florida Rule of Criminal Procedure 3.702(d)(12) can permissibly affect a guidelines computation where the predicate felony is carrying a concealed firearm. Contrary to the trial court’s view, we have concluded that the rule does apply and thus we reverse and remand for resentencing consistent with this opinion.

Lizardo and Davidson, in separate cases, each pleaded guilty to carrying a concealed semiautomatic firearm in violation of section 790.01(2), Florida Statutes (1993), which provides that: “Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

The state sought to add twenty-five points to the guidelines scoresheet pursuant to rule 3.702(d)(12) which states:

Possession of a firearm, destructive device, semiautomatic weapon, or a machine gun during the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points shall be assessed where the defendant is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) while having in his or her possession a firearm as defined in 790.001(6) or a destructive device as defined in subsection 790.001(4).

Twenty-five sentence points shall be assessed where the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) while having in his or her possession a semiautomatic weapon as defined in subsection 775.087(2) or a machine gun as defined in subsection 790.001(9).1 In each case the trial court held the rule inapplicable and declined to assess the points contemplated in rule 3.702(d)(12).

Lizardo and Davidson urge us to affirm the trial court in two related arguments: first, that the additional points offend the prohibition against double jeopardy and, second, that scoring points for the possession of a firearm constitutes an improper enlargement of the sentence solely as a result of an essential element of the underlying offense, i.e., the firearm.

We reject each argument.

The circumstances in the instant cases are distinguishable from those in which we have reversed felony sentences stemming from a single act constituting separate firearm related crimes. Cleveland v. State, 587 So. 2d 1145 (Fla.1991); Hall v. State, 517 So. 2d 678 (Fla.1988). Lizardo and Davidson’s reliance upon these cases is misplaced. They have each experienced only one conviction, arising from a single criminal act, condemned by only one statute, section 790.01(2).

Rule 3.702(d)(12), unlike section 790.01(2), does not create a crime. Rather, the rule simply distinguishes between types of firearms and manifests nothing more than legislative recognition of the need to deter through enhanced punishment the use of semiautomatic firearms and their potential for the infliction of severe injury during the commission of criminal acts.

Finally, we express agreement with the result reached in Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1995), in which the rule withstood challenges paralleling Lizardo’s and Davidson’s.

Lizardo and Davidson were each in possession of a semiautomatic weapon; thus, we reverse and remand for the trial court to resentence them in accordance with this opinion.

SCHOONOVER, A.C.J., and ALTENBERND, J., concur. . Florida Rule of Criminal Procedure 3.702(d)(12), adopted by the Florida Supreme Court in Amendments to Florida Rules of Criminal Procedure Re Sentencing Guidelines, 628 So. 2d 1084, 1091 (Fla. 1993) (Appendix B), implements section 921.0014, Fla.Stat. (1993), as created by chapter 93-406, Laws of Florida.


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Citator

Cited By (17 total)

  • White v. State, 714 So. 2d 440 (Fla. 1998)
    …v. State, 661 So. 2d 1274, 1275 (Fla. 5th DCA 1995); cf. State v. Hanks, 700 So. 2d 779, 779 (Fla. 2d DCA 1997) (Holding that trial court should not have stricken eighteen sentencing points and certifying conflict with Galloway); State v. Davidson, 666 So. 2d 941, 942 (Fla. 2d DCA 1995) (finding no double jeopardy violation in assessing additional points for possession of a firearm). With the exception of Hanks, Davidson and Smith, however, the cited cases all involve convictions for other substantive crimi…
  • Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)
    …a felony, other than those enumerated in subsection 775.087(2), Florida Statutes, “while having in his or her possession a firearm.” (Emphasis added) We recognize that two districts appear to have decided this issue otherwise. See State v. Davidson, 666 So. 2d 941 (Fla. 2d DCA 1995); Gardner v. State, 661 So. 2d 1274, 1275 (Fla. 5th DCA 1995). We do not disagree with the conclusion in Davidson and Gardner that assessing the additional scoresheet points does not offend principles of double jeopardy. But we con…
  • Smith v. State, 683 So. 2d 577 (Fla. 5th DCA 1996)
    …the meaning of rule 3.702(d)(12) was clear and any felony not enumerated was subject to having the additional 18 points assessed because a handgun was involved. Therefore, the assessment of 18 additional points was proper. Accord, State v. Davidson, 666 So. 2d 941, 942 (Fla. 2d DCA 1995) (holding the rule simply distinguishes between types of firearms and manifests nothing more than legislative recognition of the need to deter through enhanced punishment the use of firearms and their potential for the inflict…

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