KEVIN PALMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Palmer was convicted of aggravated battery with a firearm and sentenced to 111.75 months including a three-year mandatory minimum. The court vacated his sentence because the trial judge erroneously imposed twenty-five additional points for use of a semi-automatic weapon, which the sentencing guidelines specifically excluded for crimes enumerated in § 775.087(2)—a category that includes aggravated battery.
The court held that the trial judge erred in imposing the twenty-five additional points because Rule 3.701(d)(12) specifically excludes felonies enumerated in § 775.087(2), which includes aggravated battery, from the additional point provision for possession of a semi-automatic weapon.
[1] Twenty-five additional sentence points shall be assessed where the offender is convicted of committing or attempting to commit any felony other than those enumerated in s…
[2] Felonies enumerated in subsection 775.087(2), Florida Statutes, include murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnappi…
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Join FLexlaw to unlock all legal intelligence“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”
This quote establishes the plain language of Rule 3.701(d)(12) showing the explicit exclusion for crimes enumerated in § 775.087(2), which includes aggravated battery
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Join FLexlaw to unlock all legal intelligencePalmer was convicted of aggravated battery with a firearm following a jury trial. The trial judge imposed a sentence of 111.75 months, including a thr…
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W. SHARP, Judge.
Palmer argues on appeal that his sentence imposed on April 27, 1995 (111.75 months in prison, including a three year minimum mandatory sentence), should be vacated and this cause remanded for resentencing because the trial judge erroneously added to Palmer’s score twenty-five points on his scoresheet for using a “semi-automatic” weapon. The state concedes error. After a jury trial, Palmer was convicted of aggravated battery with a firearm. § 784.045(1)(a)2., Fla.Stat. (1993). Twenty-five points were imposed in this case for use of a semi-automatic weapon. This pushed Palmer’s score up one bracket from ninety-two to one hundred seventeen. The sentence imposed was the maximum allowable under the guidelines, based on a score of one hundred seventeen.
Pursuant to rule 3.701(d)(12) (effective January 1, 1994), twenty-five additional points shall be added to the sentencing score-sheet for felony offenders who have in their possession a semi-automatic weapon. However, the rule specifically excludes from this additional point provision, felonies enumerated in subsection 775.087(2). Rule 3.701(d)(12) provides in pertinent part:
Possession of a firearm, destructive device, semi-automatic weapon, or a machine gun during the commission or attempt to commit a crime will result in additional sentence points_ 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_ (emphasis supplied).
Section 775.087(2)(a) lists the following crimes:
[M]urder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking/entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes, (emphasis supplied)
This statute also imposes an eight-year calendar minimum sentence for the crimes enumerated in 775.087(2), if the offender possessed a semi-automatic firearm. Since this enhanced penalty is contemplated for those crimes enumerated, it makes sense to exclude them from the twenty-five additional point provision in the sentencing guidelines. In this case the statutory eight year minimum sentence is less than the 111.75 months sentence, which was imposed.
Sentence VACATED; REMANDED for Resentencing.
PETERSON, C.J., and GRIFFIN, J., concur.
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Dacosta v. State, 672 So. 2d 861 (Fla. 3d DCA 1996)…nly for felonies “other than those enumerated in s. 775.087(2).” Accordingly, the sentence is vacated and the cause remanded for resentencing upon a properly calculated scoresheet which shall not include the points in question. See Palmer v. State, 667 So. 2d 1018 (Fla. 5th DCA 1996). Affirmed in part, vacated in part and remanded.…
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Thomas v. State, 685 So. 2d 867 (Fla. 2d DCA 1996)…87(2), Florida Statutes (1993). Robbery is one of the felonies enumerated in section 775.087(2) and, therefore, eighteen points may not be added to the scoresheet for possession of a firearm during the commission of the felony.1 See Palmer v. State, 667 So. 2d 1018 (Fla. 5th DCA 1996). Since the eighteen points should not have been added to appellant’s scoresheet, we reverse the sentence and remand for recalculation of the scoresheet and resentencing. Affirmed in part, reversed in part, and remanded. CAMPBE…
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Bush v. State, 687 So. 2d 312 (Fla. 1st DCA 1997)…resheet should not have included an additional eighteen points for using a firearm because attempted second-degree murder is an enumerated crime under section 775.087(2)(a), Florida Statutes (1995). See Fla. R.Crim. P. 3.702(d)(12); Palmer v. State, 667 So. 2d 1018 (Fla. 5th DCA 1996). The appellant’s scoresheet also should not have included four points for a legal status violation. Florida Rule of Criminal Procedure 3.702 provides that a legal status violation occurs when a defendant commits an offense whil…
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