ANTHONY SCHMIEL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that additional sentencing points cannot be assessed for carrying a concealed firearm when it is the sole underlying offense, and clarified that sentencing enhancements for firearm possession do not apply to misdemeanor offenses like resisting an officer without violence.
Additional sentencing points may not be assessed for carrying a concealed firearm when possession of a firearm is an essential element of the underlying offense. Sentencing enhancement points for firearm possession do not apply to misdemeanor offenses, and no points may be assessed for robbery, which is an enumerated offense under Florida Statutes § 775.087(2).
[1] Additional sentencing guideline points for possession of a semiautomatic weapon are not assessed when the conviction is for carrying a concealed weapon itself, and not fo…
[2] A conviction for carrying a concealed weapon does not trigger additional sentencing guideline points for possession of a firearm or semiautomatic weapon under Florida Rul…
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Join FLexlaw to unlock all legal intelligence“additional sentencing points may not be assessed against a defendant's guideline sentencing score for carrying or possessing a firearm during the commission of a crime if the sole underlying offense for which points may be assessed is carrying a concealed weapon or possession of a firearm by a convicted felon”
States the core holding regarding when firearm sentencing enhancements cannot be applied
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Join FLexlaw to unlock all legal intelligenceSchmiel pled no contest to carrying a concealed firearm, resisting an officer without violence, and robbery. The trial court assessed additional sente…
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PER CURIAM.
We have for review the opinion in Schmiel v. State, 710 So. 2d 1388 (Fla. 5th DCA 1998), which certified conflict with the opinion in Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We recently approved the decision in Galloway in White v. State, 714 So. 2d 440 (Fla.1998), wherein we held that additional sentencing points may not be assessed against a defendant’s guideline sentencing score for carrying or possessing a firearm during the commission of a crime if the sole underlying offense for which points may be assessed is carrying a concealed weapon or possession of a firearm by a convicted felon. We reasoned that neither rule 3.702(d)(12)1 of the Florida Rules of Criminal Procedure nor section 921.0014 of the Florida Statutes (1993), contemplated the assessment of additional sentencing points for carrying or possessing a firearm where the essential element of the underlying offense is carrying or possessing a firearm.
In this case, appellant pled no contest to the offenses of carrying a concealed firearm, resisting an officer without violence, and robbery. As we held in Asbell v. State, 715 So. 2d 258 (Fla.1998), rule 3.702 clearly states that additional points may not be assessed against offenses enumerated in section 775.087(2), Florida Statutes (1993). See id. at 258. Because robbery is One of the enumerated offenses in section 775.087(2), additional sentencing points may not be assessed for that offense. See id. As for appellant’s conviction for resisting an officer without violence, the language of rule 3.703(d)(19) expressly limits its application to felony offenses.2 Because resisting an officer without violence is a misdemeanor, see § 843.02, Fla. Stat. (1997), rule 3.703(d)(19) would not apply to such offense.3 Thus, the only remaining offense is carrying a concealed weapon, which, as we held in White, may not be assessed additional sentencing points since possession of a weapon is an essential element of the offense.
Therefore, we quash the decision below and remand this case for further proceedings in accord with our opinion in White.
It is so ordered.
HARDING, C.J., and SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. WELLS, J., dissents.
. Appellant was convicted for a crime which occurred in March, 1996. Because rule 3.703(d)(19) applies to offenses committed on or after October 1, 1995, it rather than rule 3.702(d)(12) applies to the offenses in this case. The language in both rules, however, is substantially the same.
. Rule 3.703(d)(19), provides in pertinent part: "Possession of a firearm, semiautomatic firearm, or a machine gun during the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points are assessed if the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) 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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Robertson v. State, 807 So. 2d 708 (Fla. 4th DCA 2002)…is authorized when a defendant possesses a firearm during the commission of a felony where the crime is neither one that is enumerated in section 775.087(2), [*709] nor one where possession of a firearm is an essential element. See Schmiel v. State, 727 So. 2d 257, 258-59 (Fla.1999); Cleveland v. State, 717 So. 2d 188, 188 (Fla. 5th DCA 1998). The crime of shooting a deadly missile is not enumerated in section 775.087(2), see Samuels v. State, 681 So. 2d 915, 915-16 (Fla. 4th DCA 1996), nor is possession of a…
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Ackerman v. State, 737 So. 2d 1145 (Fla. 1st DCA 1999)…not believe the Legislature intended such an anomalous result. Mr. Ackerman also argues by analogy to the rule that points cannot be scored for possession of a firearm where such possession is an element of the offense. See, e.g., Schmiel v. State, 727 So. 2d 257 (Fla.1999). But this rule arises from statutory language that does not pertain here. Section 921.0014(l)(b), Florida Statutes (1997), authorizes additional points when a defendant commits a felony, not by virtue of, but simply “while having in his o…
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Holley v. State, 745 So. 2d 1049 (Fla. 1st DCA 1999)…session of a firearm by a convicted felon. See Butler v. State, 493 So. 2d 451, 452 (Fla.1986), Kelley v. State, 486 So. 2d 578, 584 (Fla.1986). We agree with appellant that, under White v. State, 714 So. 2d 440, 443 (Fla.1998) and Schmiel v. State, 727 So. 2d 257 (Fla.1999), cases decided subsequent to the imposition of appellant’s sentence, the trial court improperly assessed 25 enhancement points for possession of a firearm. Because the appellant failed to object to his scoresheet at sentencing below and h…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities 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)
- Vela v. State, 717 So. 2d 519 (Fla. 1998)
- Schmiel v. State, 710 So. 2d 1388 (Fla. 5th DCA 1998)
- Harrison v. State, 710 So. 2d 1388 (Fla. 5th DCA 1998)