HUGO U. VELA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed whether sentencing points for firearm possession may be added when the underlying conviction is for carrying a concealed weapon or possession of a firearm by a convicted felon. The Court held that such additional points are improper when firearm possession is the essential element of the offense, and remanded for reconsideration.
It is error for a trial court to assess additional sentencing points for possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon. The Court held that sentencing rules do not contemplate the addition of such points where firearm possession is the essential element of the underlying offense.
[1] Additional sentencing points for carrying or possessing a firearm during the commission of a crime may not be added to a defendant's sentencing score where the defendant…
[2] Sentencing points for carrying or possessing a firearm are not contemplated where the carrying or possession of a firearm is the essential element of the underlying offen…
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Join FLexlaw to unlock all legal intelligence“it is error for a trial court to assess additional sentencing points for possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon”
Establishes the core holding that double-counting firearm possession points is improper
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHugo Vela was convicted of carrying a concealed weapon and resisting an officer without violence. The trial court assessed additional sentencing point…
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PER CURIAM.
We have for review the decision in State v. Vela, 700 So. 2d 779 (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 during the commission of a crime may be added to a defendant’s sentencing score where the defendant is convicted of carrying a concealed weapon or possession of a firearm by a convicted felon. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Recently, we resolved this conflict in White v. State, 714 So. 2d 440, 23 Fla. L. Weekly S 311 (Fla.1998), wherein we held that it is error for a trial court to assess additional sentencing points for possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon. In other words, we held that rule 3.702(d)(12) of the Florida Rules of Criminal Procedure and section 921.0014, Florida Statutes (1993), do not contemplate the addition of sentencing points for carrying or possessing a firearm where the carrying or possession of a firearm is the essential element of the underlying offense. In so holding, we approved the Fourth District’s opinion in Galloway.
In this ease, defendant was convicted of carrying a concealed weapon and resisting an officer without violence. We are unable to ascertain from the record and opinion below, however, whether the defendant possessed a firearm during the commission of the additional offense for resisting an officer. Therefore, we remand for further proceedings in accordance with our decision in White.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN and ANSTEAD, JJ„ concur. WELLS, J., dissents with an opinion.
WELLS, Justice,
dissenting.
I dissent for the reasons stated in my dissenting opinions in Asbell v. State, 715 So. 2d 258 (Fla.1998); and White v. State, 714 So. 2d 440, 23 Fla. L. Weekly S311 (Fla.1998).
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Citator
Cited By
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Schmiel v. State, 727 So. 2d 257 (Fla. 1999)…commit any felony other than those enumerated in subsection 775.087(2) [*259] while having in his or her possession a fire-arm_” Fla. R.Crim. P. 3.703(d)(19) (emphasis added). . In so holding, we recede from any ambiguous language in Vela v. State, 717 So. 2d 519 (Fla. 1998), to the extent it implies that additional sentencing points may be assessed against a defendant convicted of the offense resisting an officer without violence. See supra, note 2.…
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Cleveland v. State, 717 So. 2d 188 (Fla. 5th DCA 1998)…y held that additional points for possessing a firearm while committing a felony or attempting to commit a felony should not be added where the sole underlying crime has as an essential element the carrying or possession of a firearm. Vela v. State, 717 So. 2d 519 (Fla.1998); Coleman v. State, 713 So. 2d 987 (Fla.1998); White v. State, 714 So. 2d 440 (Fla.1998). In this case, Cleveland was convicted of three offenses. One, resisting an officer without violence, is not a crime which has as an essential elemen…
Authorities Cited
- White v. State, 714 So. 2d 440 (Fla. 1998)
- Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)
- Asbell v. State, 715 So. 2d 258 (Fla. 1998)
- State v. Hanks, 700 So. 2d 779 (Fla. 2d DCA 1997)