STATE OF FLORIDA, APPELLANT,
v.
RODNEY WALTON, APPELLEE
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Florida appeals a probationary sentence imposed on Rodney Walton for carrying a concealed weapon, arguing that the trial court should have assessed additional sentencing guideline points for possession of a semiautomatic weapon. The Fourth District affirms, holding that sentencing guideline points for weapon possession apply only when the weapon is possessed during the commission of an additional substantive felony, not when the weapon offense itself is the sole conviction.
The court affirmed the trial court's decision not to assess additional guideline points, holding that Florida Rule of Criminal Procedure 3.702(d)(12) and section 921.0014 apply only when a defendant is convicted of committing a felony other than a weapon possession offense while in possession of the weapon, not when the weapon possession itself is the sole conviction.
[1] Additional sentencing guideline points for possession of a semiautomatic weapon are not assessed when the conviction is for carrying a concealed weapon and is unrelated t…
[2] A conviction for carrying a concealed weapon does not automatically trigger additional sentencing guideline points for possession of a semiautomatic weapon.
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Establishes the court's interpretation that additional sentencing points apply only when a weapon is possessed during commission of an additional felony, not when weapon possession is the sole conviction.
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Join FLexlaw to unlock all legal intelligenceWalton pleaded no contest to carrying a concealed weapon after the trial court agreed to withhold adjudication and impose eighteen months probation. T…
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POLEN, Judge.
The state appeals Rodney Walton’s sentence of eighteen months probation entered pursuant to a no contest plea on a charge of carrying a concealed weapon. The state claims the trial court erred in failing to assess additional sentencing guideline points for the weapon. We affirm.
Walton pled no contest after the court stated that it would withhold adjudication and place him on eighteen months probation. The state maintained below and argues on appeal that an additional twenty-five (25) points should have been included on Walton’s guideline seoresheet for having a semiautomatic weapon, and with these additional points a prison sentence would have been mandatory. It is appellant’s position that these additional points should have been assessed pursuant to Florida Rule of Criminal Procedure 3.702(d)(12), which provides:
(12) 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 subsection 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).
Section 921.0014, Florida Statutes (1995), similarly provides:
Possession of a firearm, semiautomatic firearm, or machine gun: If the offender is convicted of committing or attempting to commit any felony other than those enumerated in Sec. 775.087(2) while having in his possession: a firearm as defined in Sec. 790.001(6), an additional 18 sentence points are assessed; or if the offender is convicted of committing or attempting to commit any felony other than those enumerated in Sec. 775.087(3) while having in his possession a semiautomatic firearm as defined in Sec. 775.087(3) or a machine gun as defined in Sec. 790.001(9), an additional 25 sentence points are assessed.
In Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996), this court stated as follows:
We reverse Appellant’s sentence and remand for resentencing due to seoresheet error in assessing 18 additional points for possession of a firearm. Florida Rule of Criminal Procedure 3.702(d)(12) permits assessment of these additional points where the defendant is convicted of committing 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 seoresheet points does not offend principles of double jeopardy. But we construe rule 3.702(d)(12) as inapplicable to convictions of these two offenses when unrelated to the commission of any additional substantive offense.
Our prior decision in Galloway compels an affirmance of the trial court’s failure to add guideline points for the weapon and Walton’s sentence. We certify conflict with State v. Davidson, 666 So. 2d 941 (Fla. 2d DCA 1995); Gardner v. State, 661 So. 2d 1274, 1275 (Fla. 5th DCA 1995), and Smith v. State, 683 So. 2d 577 (Fla. 5th DCA 1996), which have held to the contrary.
STONE and WARNER, JJ., concur.
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Citator
Cited By
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White v. State, 714 So. 2d 440 (Fla. 1998)…the court construed the “while” language to mean that the firearm possession must occur during the commission of a separate crime that does not itself necessarily involve possession of a firearm as a legal element thereof. See also State v. Walton, 693 So. 2d 135, 136-37 (Fla. 4th DCA 1997) (holding that rule 3.702(d)(12) does not apply to convictions for possession of firearm and carrying concealed weapon when unrelated to commission of any additional substantive offenses); Aguilar v. State, 700 So. 2d 58,…
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Thompson v. State, 756 So. 2d 39 (Fla. 2000)…emi-automatic weapon where the defendant was convicted and sentenced for the offense of carrying a concealed firearm. The Fourth District affirmed the trial court’s refusal to add the additional points for the weapon possession. See State v. Walton, 693 So. 2d 135, 137 (Fla. 4th DCA 1997). Upon review, we reiterated our holding in White and approved the Fourth District’s decision. See Walton, 717 So. 2d at 522. Accordingly, we approve the opinion in Williams and quash the decision in Thompson in accordance w…
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Scott v. State, 700 So. 2d 470 (Fla. 1st DCA 1997)…review granted, 696 So. 2d 343 (Fla.1997); Ramirez v. State, 677 So. 2d 95 (Fla. 1st DCA 1996); State v. Davidson, 666 So. 2d 941 (Fla. 2d DCA 1995); Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1995). We certify conflict with State v. Walton, 693 So. 2d 135 (Fla. 4th DCA 1997), review granted, 698 So. 2d 849 (Fla.1997), and Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996). MINER, ALLEN and WEBSTER, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)
- Gardner v. State, 661 So. 2d 1274 (Fla. 5th DCA 1996)
- State v. Davidson, 666 So. 2d 941 (Fla. 2d DCA 1995)
- Smith v. State, 683 So. 2d 577 (Fla. 5th DCA 1996)