STATE OF FLORIDA, APPELLANT,
v.
JIMMY WAYNE KING, APPELLEE
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The court held that eighteen points for firearm possession were properly assessed under the rules, even if the same firearm was involved in multiple offenses.
The appellee pleaded guilty to several offenses including possession of a firearm by a convicted felon, carrying a concealed firearm, and possession o…
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[*782] CAMPBELL, Judge.
The state challenges the trial court order striking eighteen points from appellee’s scoresheet for possession of a firearm. We reverse.
Appellee pled guilty to a seven count information which included, among other drug and motor vehicle related offenses, possession of a short-barreled shotgun, carrying a concealed firearm, and possession of a firearm by a convicted felon. On appeal, appel-lee maintains that the scoring of eighteen additional points for possession of a firearm would be improper since the three offenses involved the possession of the same firearm and was an essential element of his offense.
Under Florida Rule of Criminal Procedure 3.702(d)(12), eighteen points are to be assessed where the defendant is convicted of any felony other than those enumerated in subsection 775.087(2) if the defendant is in possession of a firearm. Since possession of a firearm by a convicted felon, carrying a concealed firearm, and possession of a short-barreled shotgun are not among the offenses enumerated, the addition of the eighteen points was proper. See White v. State, 689 So. 2d 371 (Fla. 2d DCA 1997), review granted, 696 So. 2d 343 (Fla.1997).
Accordingly, appellee’s sentence is reversed and remanded to the trial court so that appellee can be resentenced in accordance with the corrected scoresheet. Since appellee’s plea was conditioned upon the eighteen points being stricken, on remand, appellee should be given the opportunity to withdraw his 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.
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Cited By
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White v. State, 714 So. 2d 440 (Fla. 1998)…act 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), review dismissed, 691 So. 2d 1081 (Fla.1997); Gardner v. State, 661 So. 2d 1274, 1275 (Fla. 5th DCA 1995); cf.…
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King v. State, 715 So. 2d 256 (Fla. 1998)…PER CURIAM. We have for review the decision in State v. King, 700 So. 2d 781 (Fla. 2d DCA 1997), which the district court 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 dur…
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)