ERIC LAMON WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Williams challenged his 51.5-month prison sentence for possession of a firearm by a convicted felon, arguing that 25 points improperly added to his sentencing scoresheet for possessing a semi-automatic weapon violated Florida sentencing guidelines. The court agreed and vacated the sentence for resentencing.
The 25 additional points should not have been added to Williams's sentencing scoresheet because possession of a firearm by a convicted felon—the only offense for which he was being sentenced—has the carrying of a firearm as an essential element. The White v. State precedent controlling this issue holds that additional points pursuant to Rule 3.702(d)(12) should not be added when the sole offense being sentenced includes firearm possession as an essential element.
[1] Additional points for possession of a semi-automatic weapon under Florida Rule of Criminal Procedure 3.702(d)(12) should not be added to a defendant's scoresheet if the s…
[2] Florida Rule of Criminal Procedure 3.702(d)(12) provides for additional points for possession of a semi-automatic weapon, but these points should not be assessed if the u…
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Join FLexlaw to unlock all legal intelligence“In White, the Florida Supreme Court held that pursuant to Florida Rule of Criminal Procedure 3.702(d)(12), 18 additional points for possession of a firearm should not be added to a defendant's scoresheet, if the only offense for which the defendant is being sentenced has as an essential element the carrying of a firearm.”
Establishes the controlling precedent that bars addition of firearm-related points when the primary offense inherently includes firearm possession
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Join FLexlaw to unlock all legal intelligenceWilliams pleaded nolo contendere to possession of a firearm by a convicted felon, the only offense for which he was being sentenced. The trial court a…
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Williams argues his sentence of 51.5 months in prison for possession of a firearm by a convicted felon1 was unlawfully extended because 25 additional points were added to his sentencing scoresheet for possession of a semi-automatic weapon. The points were added pursuant to Florida Rule of Criminal Procedure 3.702(d)(12). We agree that they should not have been added in this case. Accordingly, we vacate the sentence and remand for resentencing.
White v. State, 714 So. 2d 440 (Fla.1998) is controlling. In White, the Florida Supreme Court held that pursuant to Florida Rule of Criminal Procedure 3.702(d)(12), 18 additional points for possession of a firearm should not be added to a defendant’s scoresheet, if the only offense for which the defendant is being sentenced has as an essential element the carrying of a firearm. White involved a defendant who had been convicted of carrying a concealed firearm and possession of a firearm by a convicted felon.
In this case, Williams pled nolo contendere to the crime of possession of a firearm by a convicted felon. It is the only offense for which he was being sentenced in this case. Although rule 3.702(d)(12) provides 18 points ai’e to be assessed in cases where a defendant possesses a firearm, it further provides in a parallel provision that 25 points should be assessed if (among other things) the defendant possesses a semi-automatic weapon as defined in subsection 775.087(2). Since these are twin provisions in the same rule, the holding in White should control this case as well.
It may be, as suggested by Judge Daukseh’s special concurring opinion, that courts should impose the same requirements for application of additional points pursuant to rule 3.702(d)(12) as they have for enhancing the seriousness of offenses pursuant to section 775.087(1). In general, those requirements are that the information must actually charge use of a firearm, and the jury must make a fact finding that a firearm was used. See State v. Overfelt, 457 So. 2d 1385 (Fla.1984); King v. State, 705 So. 2d 668 (Fla. 4th DCA 1998); Hargrove v. State, 675 So. 2d 1010 (Fla. 4th DCA 1996); approved, 694 So. 2d 729 (Fla.1997). Thus in this case, the information should have charged Williams with possession of a semi-automatic weapon and had the case gone to the jury, it would have had to have specifically found he possessed a semi-automatic weapon.
However, we have found no appellate case that applies those requirements for section 775.087(1) cases to rule 3.702(d)(12). Since it is not necessary to this opinion to reach that issue, we decline to do so.
Sentence VACATED; REMANDED for resentencing.
ANTOON, J., concurs.
DAUKSCH, J., concurs specially with opinion.
. § 790.23, Fla. Stat. (1997).
DAUKSCH, J.,
concurring.
While I concur with the result, I do so on a different basis. Because appellant was not charged with having a semiautomatic firearm in his possession when he committed the crime and because the jury did not make a specific finding regarding the possession of a semiautomatic weapon, it was error for the judge to enhance the sentence.
If appellant had been charged and found guilty of possession of a firearm while in commission of a felony and the charge and verdict said semiautomatic weapon, then the sentence could be enhanced. There is a difference between a firearm and a semi-automatic weapon and the legislature has recognized it by permitting a more severe penalty.
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Citator
Cited By
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Thompson v. State, 756 So. 2d 39 (Fla. 2000)…PER CURIAM. We have for review the decision in Thompson v. State, 725 So. 2d 1217 (Fla. 2d DCA 1999), which expressly and directly conflicts with the opinions in White v. State, 714 So. 2d 440 (Fla.1998), and Williams v. State, 724 So. 2d 652 (Fla. 5th DCA 1999), on the issue of whether twenty-five sentencing points for the possession of a semi-automatic firearm may be assessed against a defendant who was convicted of possession of a firearm by a convicted felon. We have jurisdiction. Ar…
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Telfa Dean Hall v. State, 738 So. 2d 996 (Fla. 5th DCA 1999)…t 25 points for possession of a semiautomatic firearm is proper even when possession of a firearm is an element of the crime. This holding conflicts with the decision reached in this case and in a prior case before this court. See Williams v. State, 724 So. 2d 652 (Fla. 5th DCA 1999). We certify direct conflict with Thompson. CONVICTION AFFIRMED; SENTENCE VACATED; CONFLICT CERTIFIED; REMANDED. PETERSON, GRIFFIN and THOMPSON, JJ., concur.…
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Stevie Lavan McKNIGHT v. State, 756 So. 2d 41 (Fla. 2000)…decision in McKnight v. State, 731 So. 2d 665 (Fla. 2d DCA 1999), which expressly and directly conflicts with this Court’s opinion in White v. State, 714 So. 2d 440 (Fla.1998), and the Fifth District Court of Appeal’s decision in Williams v. State, 724 So. 2d 652 (Fla. 5th DCA 1999), on the issue of whether twenty-five sentencing points may be assessed for the possession of a semi-automatic firearm for the convicted offense of carrying a concealed firearm. We have jurisdiction. Art. V, § 8(b)(3), Fla. Const.…
Authorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- White v. State, 714 So. 2d 440 (Fla. 1998)
- State v. Hargrove, 694 So. 2d 729 (Fla. 1997)
- Hargrove v. State, 675 So. 2d 1010 (Fla. 4th DCA 1996)
- King v. State, 705 So. 2d 668 (Fla. 4th DCA 1998)