MARLENE SCOTT DAVIS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Florida Supreme Court held that sentencing courts cannot add points for carrying or possessing a firearm where the firearm possession itself is the essential element of the underlying offense, quashing the lower court's decision.
Additional sentencing points for carrying or possessing a firearm may not be assessed where the firearm possession is the essential element of the underlying offense.
[1] Sentencing courts may not impose additional points for carrying or possessing a firearm where firearm possession constitutes the essential element of the underlying offen…
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Join FLexlaw to unlock all legal intelligenceDavis was convicted of possession of a firearm by a convicted felon, and the trial court added sentencing points for carrying or possessing a firearm …
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PER CURIAM.
We have for review the decision in Davis v. State, 710 So. 2d 764 (Fla. 5th DCA 1998), which certified 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 possession of a firearm by a convicted felon. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We recently resolved this conflict in White v. State, 714 So. 2d 440 (Fla.1998), wherein we held that it is error for a trial court to assess additional sentencing points for carrying or 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, additional sentencing points for carrying or possessing a firearm during the commission of a crime may not be assessed against a defendant’s sentencing score where the carrying or possessing of a firearm is the essential element of the underlying offense. Id. at 443-44. In so holding, we approved the opinion in Galloway.
Therefore, in accordance with our decision in White, we quash the decision below.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, ANSTEAD and PARIENTE, JJ., concur. WELLS, J., dissents.
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Citator
Cited By
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Hindenach v. State, 807 So. 2d 739 (Fla. 4th DCA 2002)…8). The state filed a Notice of Discretionary Review with the supreme court which was granted and on review, the supreme court quashed this court’s decision relying on its decision in Mays v. State, 717 So. 2d 515 (Fla.1998). See State v. Hindenach, 720 So. 2d 242 (Fla.1998). Pursuant to the supreme court’s decision, this court issued a mandate affirming appellant’s conviction and sentence. On July 12, 2000, appellant filed a motion to correct illegal sentence in the trial court under Florida Rule of Crimina…
Authorities Cited
- White v. State, 714 So. 2d 440 (Fla. 1998)
- Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)
- Williams v. State, 710 So. 2d 764 (Fla. 5th DCA 1998)