BOBBY LAMAR STEVERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the statutes pertaining to attempted murder of a law enforcement officer do not permit sentence enhancement for second-degree attempted murder.
[1] Sentencing enhancement for attempted murder of a law enforcement officer applies only to first-degree attempted murder, not second-degree.
[2] A conviction for attempted murder of a law enforcement officer requires a specific jury finding that the defendant knew the victim's status as an officer.
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Join FLexlaw to unlock all legal intelligenceSteverson was convicted of attempted murder of a law enforcement officer. The jury expressed confusion about verdict options, indicating a potential s…
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FRANK, Acting Chief Judge.
Bobby Lamar Steverson was convicted of the attempted murder of a law enforcement officer (Count I), the possession of a short-barrelled shotgun (Count II), and the carrying of a concealed firearm (Count III). A fourth count was severed from the trial of Counts I, II, and III. Steverson ultimately pleaded guilty to Count IV, was adjudicated and sentenced to a concurrent 15 year term. Steverson claims error only in that aspect of the proceeding bottomed upon Count I, the attempted murder of a law enforcement officer, and the enhanced sentence.1 The determinative issue he presents for review is “whether the statutes pertaining to attempted murder of a law enforcement officer violate equal protection.”2 Our answer results in a reversal and remand to the trial court, but we do not pass upon the constitutional question in light of State v. Iacovone, 660 So. 2d 1371 (Fla.1995).
The setting from which the controlling question arises begins with Steverson’s criminal drug problems. He was indebted to a drug dealer who in January of 1994 threatened his wife and him with physical harm. On two occasions, Steverson was subjected to physical abuse. He was hospitalized as a result of the last episode which occurred in February of 1994. The violent events inspired him to acquire firearms for self-protection, i.e., a pistol and a shotgun from which he removed a portion of the barrel. Some time later, in early March of 1994, in the course of a murder investigation unrelated to the instant proceeding, two detectives visited a drug house which coincidentally Steverson frequented. They had the house under surveillance. One of the detectives recognized Steverson and approached the car in which he was sitting. Steverson had his two weapons with him. On the heels of their encounter, Steverson and the detective exchanged gunshots. Steverson wounded the detective with the sawed-off shotgun. The testimonial evidence left to the jury the question of whether Steverson knew the identity of the wounded detective and his status as a law enforcement officer. In any event, Stev-erson’s trial counsel adequately preserved for our consideration the issue of whether Stev-erson’s conviction under Count I conforms to a permissible statutory scheme, the question to which we now turn.
The process we have followed in reversing and remanding this matter begins with the state’s apparent concession that Steverson was convicted of an attempted murder of a law enforcement officer in the second degree. The absence of challenge to that view is grounded upon the jury instructions and the jury’s subsequent question:
Where do we check if we find the defendant guilty of attempted second-degree murder of a law enforcement officer? The verdict form does not offer that option.
In response, the jury was instructed to reread the first paragraph of the attempted homicide instruction. That instruction embodied the elements associated with an attempted first and second degree murder of a law enforcement officer. No further questions were presented to the court.
Based upon the record before us and the state’s concession, we can only conclude that the jury verdict reflects a second degree conviction. At every stage of this proceeding, however, the trial court was without the benefit of the Supreme Court’s conclusion in Iacovone that sections 775.0825 and 784.07(3) permit enhancement of the sentence only where the attempted murder of a law enforcement officer is in the first degree.3 We must, therefore, reverse and remand with the direction that the trial court reduce Steverson’s conviction to the necessarily included offense of attempted second degree murder and impose an appropriate sentence. See § 924.34, Fla. Stat. (1995); Newbold v. State, 667 So. 2d 996 (Fla. 3d DCA 1996). The lack of a specific finding by the jury that Steverson used a firearm in the commission of the crime precludes the imposition upon resentencing of an enhancement or minimum mandatory sentence contemplated in section 775.087, Florida Statutes (1993). See State v. Tripp, 642 So. 2d 728 (Fla.1994).
Reversed and remanded for further proceedings consistent with this opinion.
FULMER and QUINCE, JJ., concur. . A meritless issue within Steverson's challenge to Count I is the notion that knowledge of the victim’s status as a law enforcement officer is an element in the crime of attempted murder of a law enforcement officer. See Thompson v. State, 667 So. 2d 470 (Fla. 3d DCA 1996), review granted, 675 So. 2d 931 (Fla.1996).
. Section 775.0825, Florida Statutes (1993)(re-pealed 1995), provides as follows:
Any person convicted of attempted murder of a law enforcement officer as provided in s. 784.07(3) shall be required to serve no less than 25 years before becoming eligible for parole. Such sentence shall not be subject to the provisions of s. 921.001.
Section 784.07(3), Florida Statutes (1993)(amended 1995), provides as follows:
Notwithstanding the provisions of any other section, any person who is convicted of attempted murder of a law enforcement officer engaged in the lawful performance of his duty or who is convicted of attempted murder of a law enforcement officer when the motivation for such attempt was related, all or in part, to the lawful duties of the officer, shall be guilty of a life felony, punishable as provided in s. 775.0825.
. The record indicates some confusion regarding the nature of sections 775.0825 and 784.07(3), Florida Statutes (1993), the statutes in effect at the moment when Steverson committed the criminal act. The statutes were, respectively, repealed and substantially amended by the Crime Control Act of 1995, chapter 95-184, sections 18 and 20. In any event, we have held that the foregoing statutory provisions do not express a separate offense but contemplate sentencing enhancement where the intended victim is a law enforcement officer. See Lamb v. State, 668 So. 2d 666, 667 (Fla. 2d DCA 1996); Thompson v. State, 667 So. 2d 470, 472 (Fla. 3d DCA 1996), review granted, 675 So. 2d 931 (Fla.1996).
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Steverson v. State, 695 So. 2d 687 (Fla. 1997)…e murder of a law enforcement officer in that case. On appeal, the attempted first-degree murder conviction was reversed and remanded, with directions to the trial court to reduce the conviction to attempted second-degree murder. Steverson v. State, 677 So. 2d 398 (Fla. 2d DCA 1996). In this trial for Lucas’s murder, the State sought to admit against Steverson extensive evidence of the shooting of Detective Rail. Defense counsel filed a motion in limine to exclude or limit the collateral crime evidence in re…
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Mathis v. State, 693 So. 2d 1032 (Fla. 2d DCA 1997)…[*1033] twenty-five year minimum term. As the state concedes, the supreme court recently held that these two statutes apply only to attempted first degree murder. See State v. Iacovone, 660 So. 2d 1371, 1374 (Fla.1995); see also Steverson v. State, 677 So. 2d 398, 400 (Fla. 2d DCA 1996); Iacovone v. State, 639 So. 2d 1108, 1110 (Fla. 2d DCA 1994), affirmed, 660 So. 2d 1371 (Fla.1995). Therefore, the defendant’s conviction for attempted second degree murder of a law enforcement officer may not be classified a…
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State v. Wilson, 734 So. 2d 521 (Fla. 2d DCA 1999)…Section 784.07(3) does not create a separate criminal offense but rather imposes a penalty enhancement where the attempted murder victim is a law enforcement officer. See Merritt v. State, 712 So. 2d 384, 385 (Fla.1998); see also Steverson v. State, 677 So. 2d 398, 400 n. 3 (Fla. 2d DCA 1996). Since the supreme court has ruled that section 784.07(3) does not apply in the case of attempted second-degree murder, the underlying offense should be ranked as it would be without the law enforcement penalty enhanceme…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Iacovone, 660 So. 2d 1371 (Fla. 1995)
- State v. Vinney Tripp, 642 So. 2d 728 (Fla. 1994)
- Thompson v. State, 667 So. 2d 470 (Fla. 3d DCA 1996)
- Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996)
- Bergent Newbold v. State, 667 So. 2d 996 (Fla. 3d DCA 1996)