KEVIN PALMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1997-04-25
No. 96-1705
PETERSON, C.J., and GOSHORN and GRIFFIN, 33., concur.
692 So. 2d 974 Florida District Court of Appeal, Fifth District (1997) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Kevin Palmer appeals his resentencing following conviction for aggravated battery with a firearm. The court reverses and remands because the trial court improperly enhanced his sentence based on use of a semi-automatic weapon when the information only charged use of a generic "firearm" and the jury verdict contained no special finding regarding the weapon type.


Holding

The court held that it was error to enhance Palmer's sentence based on use of a semi-automatic weapon. The specific type of firearm (semi-automatic) must be charged in the indictment or information before sentence enhancement is permitted, and a special verdict form finding or conviction of a charge specifically involving that weapon type is required to support the enhanced sentence.


Headnotes

[1] A defendant's sentence cannot be enhanced based on the use of a semi-automatic weapon if the indictment only charged the use of a "firearm" and the jury's verdict found g…

[2] Enhancement of a sentence for the use of a firearm requires a specific jury finding of firearm use, either through a guilty verdict on a charge involving a firearm or a s…

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Key Quotes

“it was error to sentence him to a minimum mandatory eight-year prison term on the basis that he utilized a semi-automatic weapon when the information charged and the jury's verdict merely found that he had used a "firearm."”

States the core holding that enhancement based on semi-automatic weapon type without proper charging and jury finding is erroneous

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Facts & Procedural History

Palmer was convicted of aggravated battery with a firearm. He was resentenced following a prior appeal. At sentencing, the trial court imposed a minim…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We grant Kevin Palmer’s motion for rehearing, withdraw our per curiam affirmance issued January 21, 1997, reverse Palmer’s sentence, and remand for resentencing.

Palmer appeals from the sentence imposed upon resentencing following his prior appeal from a conviction of aggravated battery with a firearm. See Palmer v. State, 667 So. 2d 1018 (Fla. 5th DCA 1996) (Palmer I). He correctly contends that it was error to sentence him to a minimum mandatory eight-year prison term on the basis that he utilized a semi-automatic weapon when the information charged and the jury’s verdict merely found that he had used a “firearm.”1

Analogous eases have made it clear that Palmer’s possession of a semi-automatic weapon during the commission of the aggravated battery had to be charged in the indictment before his sentence could be enhanced on this basis. See, e.g., Mesa v. State, 632 So. 2d 1094, 1097 (Fla. 3d DCA 1994) (possession of a firearm is “an essential element of the crime charged” which “must be alleged in the indictment or information” before enhancement is permitted pursuant to section 775.087, Florida Statutes); Cox v. State, 530 So. 2d 464 (Fla. 5th DCA 1988) (fundamental error to enhance offenses and impose minimum mandatory sentence because of use of firearm in commission of offenses where defendant was not charged with possession of firearm under battery counts in amended information).

Additionally, the verdict form contained no special finding that Palmer had used a semi-automatic weapon; instead, he was found guilty of aggravated battery “with a firearm.” Again, analogous cases indicate that this is insufficient to permit the enhancement of his sentence for use of a semiautomatic weapon. See, e.g., State v. Tripp, 642 So. 2d 728 (Fla.1994) (error to reclassify felony and enhance sentence based on defendant’s use of a weapon absent special verdict form reflecting jury’s separate finding that defendant used weapon during commission of felony; a finding that defendant is guilty as charged is insufficient to constitute a finding that he used a weapon even though the information alleged use of a weapon during the commission of the offense); State v. Overfelt, 457 So. 2d 1385, 1387 (Fla.1984) (“[B]efore a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.”) (quoting with approval Overfelt v. State, 434 So. 2d 945, 948 (Fla. 4th DCA 1983)); Riley v. State, 654 So. 2d 621 (Fla. 5th DCA) (error to impose minimum mandatory sentence for commission of felony while in possession of firearm absent specific jury finding that firearm was possessed during commission of the offense; verdict finding defendant guilty as charged and indictment charging use of firearm in commission of felony are insufficient to constitute a finding that the defendant used a firearm), cause dismissed, 659 So. 2d 1088 (Fla.1995).

REVERSED and REMANDED for RE-SENTENCING.

PETERSON, C.J., and GOSHORN and GRIFFIN, 33., concur. . In reversing, we recognize that the trial judge may have been misled by our dicta in Palmer I observing that section 775.087(2), Florida Statutes provides for an eight-year minimum sentence if the offender possessed a semi-automatic firearm.


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Citator

Cited By

  • Mashburn v. State, 745 So. 2d 453 (Fla. 5th DCA 1999)
    …erly decided by the jury,’ ” and that “[t]he special verdict form — not allegations in an information — indicates when a jury finds a weapon has been used.” Id. (quoting State v. Overfelt, 457 So. 2d 1385, 1387 (Fla.1984)); see also Palmer v. State, 692 So. 2d 974 (Fla. 5th DCA 1997) (error to sentence defendant based on possession of semi-automatic weapon where jury merely found that defendant had used a “firearm”). In the instant case, the jury returned a verdict finding Mashburn of guilty of “armed robber…
  • Gangapersad Ramroop v. State, 174 So. 3d 584 (Fla. 5th DCA 2015)
    …State, 745 So. 2d 458, 454 (Fla. 5th DCA 1999) (“Mashburn is correct that he should not have been adjudicated and sentenced for robbery with a firearm. On remand, he is to be resentenced for the offense of robbery with a weapon.”); Palmer v. State, 692 So. 2d 974, 975 (Fla. 5th DCA 1997) (reversing and remanding for resentencing where the trial court sentenced the defendant “to a minimum mandatory eight-year prison term on the basis that he utilized a semi-automatic weapon when the information charged and th…

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