STATE OF FLORIDA, APPELLANT,
v.
CHARLES L. WILSON, APPELLEE

Fla. 2d DCA | 1999-05-21
No. 98-02431
CAMPBELL, A.C.J., and NORTHCUTT and STRINGER, JJ., Concur.
734 So. 2d 521 Florida District Court of Appeal, Second District (1999) Caution
Cited by 2 cases

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Synopsis

The State appealed a trial court's sentencing determination that ranked attempted second-degree murder of a law enforcement officer as a level four offense. The appellate court reversed, holding that section 784.07(3) only applies to attempted first-degree murder, so the offense should be reduced to attempted second-degree murder and ranked as a level eight offense.


Holding

The court held that because section 784.07(3) does not apply to attempted second-degree murder, Wilson's offense must be reduced to the necessarily included offense of attempted second-degree murder and ranked as a level eight offense under the 1994 sentencing guidelines.


Headnotes

[1] A statute enhancing penalties for offenses against law enforcement officers does not create a separate criminal offense but rather imposes a penalty enhancement.

[2] A statute enhancing penalties for offenses against law enforcement officers applies only to attempted first-degree murder, not attempted second-degree murder.

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Key Quotes

“Section 784.07(3) does not create a separate criminal offense but rather imposes a penalty enhancement where the attempted murder victim is a law enforcement officer.”

Establishes that the law enforcement enhancement is not a standalone offense but a sentencing modifier

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Facts & Procedural History

Charles L. Wilson pleaded nolo contendere on June 12, 1995, to attempted second-degree murder of a law enforcement officer, resisting an officer with …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The State appeals the trial court’s determination ranking the offense of attempted second-degree murder of a law enforcement officer as a level four offense under the 1994 sentencing guidelines. We reverse and remand this matter for resentencing because the trial court should have reduced attempted second-degree murder of a law enforcement officer to the necessarily included offense of attempted second-degree murder and ranked it as a level eight offense.

On June 12, 1995, the defendant, Charles L. Wilson, pleaded nolo contende-re to attempted second-degree murder of a law enforcement officer,1 resisting an officer with violence,2 and battery.3 He was sentenced to eight years in prison. Wilson later challenged his sentence for attempted second-degree murder of a law enforcement officer, pursuant to Florida Rule of Criminal Procedure 3.800(a), on the basis that section 784.07(3), Florida Statutes (1993), only applied to attempted first-degree murder and that the offense should have been ranked as a level four offense, pursuant to section 921.0013(2), Florida Statutes (1993). On resentencing, the trial court properly recognized that section 784.07(3) applies only to attempted first-degree murder. See State v. Iacovone, 660 So. 2d 1371 (Fla.1995)(stating that sections 784.07(3) and 775.0825, Florida Statutes (1991) only apply to attempted first-degree murder). Although Iacovone was decided after Wilson’s conviction and sentence, the supreme court has held that the decision should be applied retroactively. See State v. Stevens, 714 So. 2d 347 (Fla.1998). In resentencing Wilson, the trial court found attempted second-degree murder of a law enforcement officer to be unlisted in section 921.0012, Florida Statutes (1993), and ranked it as a level four offense, pursuant to section 921.0013(2).4

Section 784.07(3) does not create a separate criminal offense but rather imposes a penalty enhancement where the attempted murder victim is a law enforcement officer. See Merritt v. State, 712 So. 2d 384, 385 (Fla.1998); see also Steverson v. State, 677 So. 2d 398, 400 n. 3 (Fla. 2d DCA 1996). Since the supreme court has ruled that section 784.07(3) does not apply in the case of attempted second-degree murder, the underlying offense should be ranked as it would be without the law enforcement penalty enhancement contained in section 784.07(3). See Merritt, 712 So. 2d at 385; Steverson, 677 So. 2d at 400; Newbold v. State, 667 So. 2d 996 (Fla. 3d DCA 1996).

In this case, Wilson’s primary offense of attempted second-degree murder of a law enforcement officer should have been reduced to the necessarily included offense of attempted second-degree murder without the felony reclassification based upon section 784.07(3). We must, therefore, reverse the sentence and remand with directions to reduce Wilson’s primary offense to the necessarily included offense of attempted second-degree murder which is a level eight offense under the 1994 sentencing guidelines.

Reversed and remanded for resentencing. CAMPBELL, A.C.J., and NORTHCUTT and STRINGER, JJ., Concur. . See § 784.07(3), Fla. Slat. (1993).

. See § 843.01, Fla. Slat. (1993).

. See § 784.03, Fla. Slat. (1993).

.Section 921.0013(2), Florida Statutes (1993) provides that any second-degree felony not listed in section 921.0012, Florida Statutes (1993) should be ranked as a level four offense.


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Citator

Cited By

  • Zach Richman v. State, 793 So. 2d 1072 (Fla. 3d DCA 2001)
    …] subsequently amended and pursuant to the amended version, the offense level is dropped one level for an attempt. Ch. 95-184, § 14, at 1703-04, Laws of Fla.2 Two other cases, Franco v. State, 786 So. 2d 670 (Fla. 4th DCA 2001), and State v. Wilson, 734 So. 2d 521 (Fla. 2d DCA 1999), appear likewise to involve the pre-amended version of the statute, and we distinguish those cases as well. In 1995, the legislature amended section 775.087, Florida Statutes, to provide that there is a one-level increase for the…

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