STATE OF FLORIDA, APPELLANT,
v.
PATRICIA HILTON SHIVER, APPELLEE
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The court held that the trial court erred in striking eighteen points for possession of a firearm from the appellee's scoresheets, as such points are proper under Florida Rule of Criminal Procedure 3.702(d)(12).
The appellee pled guilty to possession of a firearm by a convicted felon and violating community control. The trial court struck eighteen points for f…
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CAMPBELL, Judge.
The state challenges the trial court order striking eighteen points for possession of a firearm from both of appellee’s scoresheets, arguing that the addition of such points is proper under Florida Rule of Criminal Procedure 3.702(d)(12). We agree.
Appellee pled guilty to possession of a firearm by a convicted felon in case number 96-00597 and to violating her community control in case number 94-04939 (carrying a concealed firearm and driving with a suspended license). She received concurrent sentences in both cases of six months in jail followed by two years’ community control followed by three years’ probation.
Under Florida Rule of Criminal Procedure 3.702(d)(12), eighteen points are to be assessed when a defendant is convicted of any felony other than those enumerated in subsection 775.087(2), Florida Statutes (1995), while having in his or her possession a firearm. Since possession of a firearm by a convicted felon and carrying a concealed firearm are not among the offenses enumerated, the addition of the eighteen points on both of appellee’s scoresheets was proper and should not have been stricken. See White v. State, 689 So. 2d 371 (Fla. 2d DCA 1997), review granted, 696 So. 2d 343 (Fla.1997).
We therefore reverse and remand-to the trial court so that appellee can be resen-tenced in accordance with the corrected scoresheets. Since appellee’s plea was conditioned upon her scoring less than fifty-two points, on remand, appellee must be given the opportunity to withdraw her plea. We also certify conflict with Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996), as was done in White, 689 So. 2d 371.
DANAHY, A.C.J., and LAZZARA, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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White v. State, 714 So. 2d 440 (Fla. 1998)…or possessing a firearm is an essential element of the underlying crime. These cases are predicated upon the fact that rule 3.702(d)(12) does not explicitly exempt firearm possession cases from its enhancement provisions. See, e.g., State v. Shiver, 700 So. 2d 780, 781 (Fla. 2d DCA 1997); State v. Vela, 700 So. 2d 779, 780 (Fla. 2d DCA 1997); State v. King, 700 So. 2d 781, 782 (Fla. 2d DCA 1997); Mobley v. State, 699 So. 2d 328, 329 (Fla. 2d DCA 1997); Smith v. State, 683 So. 2d 577, 579 (Fla. 5th DCA 1996),…
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Shiver v. State, 717 So. 2d 524 (Fla. 1998)…PER CURIAM. We have for review the decision in State v. Shiver, 700 So. 2d 780 (Fla. 2d DCA 1997), which the district certified to be in conflict with the opinion in Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996), concerning the issue of whether additional sentencing points for carrying or possessing a firearm during th…
Authorities Cited
- Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)
- Ozell McNABB v. State, 689 So. 2d 371 (Fla. 1st DCA 1997)
- White v. State, 689 So. 2d 371 (Fla. 2d DCA 1997)