HERMAN MINOR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a conviction for manslaughter with a firearm is subject to reclassification as a first-degree felony under section 775.087(1), Florida Statutes.
[1] A conviction for manslaughter with a firearm is subject to reclassification as a first-degree felony when a weapon or firearm is used, as such use is not an element of th…
[2] The firearm enhancement statute cannot be applied to further enhance a conviction where the underlying offense statute already specifically involves the use of a firearm.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of manslaughter with a firearm. He argued that this conviction should not be reclassified as a first-degree felony under t…
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On Motion for Rehearing
PER CURIAM.
In his motion for rehearing, defendant-appellant Herman Minor argues that his conviction of manslaughter with a firearm was not subject to reclassification as a first-degree felony under section 775.087(1), Florida Statutes (1993). We disagree.
Defendant was charged with second-degree murder with a firearm. He was convicted of the lesser included offense of manslaughter with a firearm. Manslaughter is a second-degree felony. See id. § 782.07. Because the use of a weapon or firearm is not an element of the offense of manslaughter, see id., the crime is subject to reclassification to a first-degree felony where a weapon or firearm is used. See id. § 775.087(l)(a); Mitchell v. State, 689 So. 2d 1118, 1120 (Fla. 3d DCA), appeal dismissed, 697 So. 2d 511 (Fla.1997).
Defendant relies on Lamont v. State, 610 So. 2d 435 (Fla.1992), but that case has no application here. In Lamont, the defendant was convicted of burglary of an occupied dwelling with a firearm. See id. at 439. Since the defendant was convicted under a subdivision of the burglary statute which specifically involves use of a firearm, it was impermissible to apply the firearm enhancement statute, section 775.087(1), Florida Statutes, to accomplish any additional enhancement.
Defendant also relies on Garner v. State, 613 So. 2d 584 (Fla. 4th DCA 1993), and Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989), approved, Gonzalez v. State, 585 So. 2d 932 (Fla.1991), but those cases are not on point. In Franklin v. State, defendant was convicted of third-degree murder, see § 782.04(4), Florida Statutes, where the underlying felony was aggravated battery with a deadly weapon. See 541 So. 2d at 1228. Where, in a third-degree murder case, an essential element of the underlying felony is use of a deadly weapon, it is impermissible to apply the weapon/firearm enhancement statute, section 775.087(1), Florida Statutes.
The same analysis is true of Garner v. State, 613 So. 2d at 584. Although the Garner opinion does not identify the felony underlying the third-degree murder conviction, the Gamer opinion cites Gonzalez v. State, 585 So. 2d 932 (Fla.1991). In Gonzalez, like Franklin, the felony underlying the third-degree murder conviction was aggravated battery with a deadly weapon. See id. at 933. For that reason, reclassification of the crime of third-degree murder under section 775.087(1) was impermissible.
For the reasons stated, the cases cited by defendant do not apply in the present case to his manslaughter conviction. Classification of his conviction of manslaughter with a firearm as a first-degree felony was correct. That being so, it follows that there was no error in reclassifying the same crime to a life felony under the habitual violent felony of fender statute. See § 775.084(4)(b), Fla. Stat. Rehearing denied.
Cases With Similar Vibessemantic neighbors from the corpus
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Minor v. State, 963 So. 2d 797 (Fla. 3d DCA 2007)…facts of his prior felony conviction); Minor v. State, 799 So. 2d 1053 (Fla. 3d DCA 2001)(table)(alleging his sentence was illegally enhanced without a jury finding that defendant used a firearm and without proof of prior felonies); Minor v. State, 707 So. 2d 1184 (Fla. 3d DCA 1998)(alleging "defendant was denied effective assistance of counsel for counsel’s failure to move to have the illegal sentence of habitualization vacated"). . In addition, defendant raises several new points of error regarding defenda…
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Sapp v. State, 913 So. 2d 1220 (Fla. 4th DCA 2005)…the judgment of conviction and sentence. STONE and FARMER, JJ., concur. . Because use of a firearm is not an element of the offense of manslaughter, appellant’s manslaughter conviction was reclassified as a first-degree felony. See Minor v. State, 707 So. 2d 1184 (Fla. 3d DCA 1998); see also § 75.087(1)(a), Fla. Stat. (2003).…
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Wilson v. State, 732 So. 2d 470 (Fla. 4th DCA 1999)…PER CURIAM. Affirmed. See Traylor v. State, 710 So. 2d 172, 174-75 (Fla. 3d DCA 1998); Minor v. State, 707 So. 2d 1184 (Fla. 3d DCA 1998). GUNTHER, STEVENSON and GROSS, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)
- Gonzalez v. State, 585 So. 2d 932 (Fla. 1991)
- Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989)
- Mitchell v. State, 689 So. 2d 1118 (Fla. 3d DCA 1997)
- Garner v. State, 613 So. 2d 584 (Fla. 4th DCA 1993)