TIMOTHY SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1999-06-23
No. 98-4213
STONE, C.J., POLEN and GROSS, JJ., concur.
737 So. 2d 577 Florida District Court of Appeal, Fourth District (1999) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Timothy Smith appeals an order denying his motion to correct an illegal sentence, arguing that assessing 25 additional points on his sentencing guidelines scoresheet for possession of a semi-automatic weapon violated double jeopardy because his offense was already enhanced from a third-degree to second-degree felony based on firearm possession. The Fourth District Court of Appeal affirmed, holding that the double jeopardy clause does not preclude such assessment and that retroactive application of White v. State was improper.


Holding

The double jeopardy clause does not preclude assessment of 25 points for possession of a semi-automatic weapon simply because the sentence has been raised to a higher felony degree based on possession of a firearm. The felony is not specifically predicated on possession of a firearm, and the two enhancement provisions are aimed at different evils.


Headnotes

[1] The double jeopardy clause does not preclude the assessment of additional sentencing points for possession of a semi-automatic weapon when the underlying offense has alre…

[2] Sentencing enhancements for possession of a semi-automatic weapon and for elevating a felony degree based on firearm possession are aimed at different evils and do not vi…

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Key Quotes

“Based on the foregoing, we hold that the double jeopardy clause does not preclude the assessment of 25 points for possession of a semi-automatic weapon simply because the sentence has been raised to a higher felony degree based on possession of a firearm.”

States the court's core holding on the double jeopardy issue

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Facts & Procedural History

Smith was convicted of attempted manslaughter with a firearm, a lesser offense. His sentence was enhanced by reclassifying his offense from a third-de…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We affirm an order denying Smith’s motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a).

Smith was convicted of a lesser offense of attempted manslaughter with a firearm. His motion alleged that the trial court violated the prohibition against double jeopardy by assessing an additional 25 points on the guidelines scoresheet for possession of a semi-automatic weapon because his offense was already enhanced from a third-degree felony to a second-degree felony by virtue of the firearm possession.

Smith’s punishment was increased by reclassifying his offense from a third-degree felony to a second-degree felony, and further increased by assessing the additional 25 points pursuant to § 921.0014’ Florida Statutes, and Florida Rule of Criminal Procedure 3.702(d)(12). In White v. State, 714 So. 2d 440 (Fla.1998), where the defendant was convicted of carrying a concealed firearm and possession of a firearm by a convicted felon, the court recognized that the defendant could not be assessed additional points on his scoresheet for possession of a firearm since his offenses were specifically predicated on' possessing a firearm. We note that White disallowed the imposition of additional sentencing points as a matter of statutory construction but did not'address a double jeopardy issue.

In State v. Davidson, 666 So. 2d 941 (Fla. 2d DCA 1995), the court held that there is no double jeopardy violation even where a defendant convicted of carrying a concealed firearm is assessed additional points for possessing a firearm. In Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996), this court agreed with' Davidson that assessing the additional scoresheet points does not offend principles of double jeopardy. Galloway disagreed with Davidson on the statutory construction issue, not applicable here, and the supreme court in White approved Galloway on that basis.

Based on the foregoing, we hold that the double jeopardy clause does not preclude the assessment of 25 points for possession of a semi-automatic weapon simply because the sentence has been raised to a higher felony degree based on possession of a firearm. Here, the felony is not specifically predicated on possession of a firearm. Additionally, the two enhancement provisions at issue are clearly aimed at different evils. See Davidson.

We note, as the state,argues, that even if Smith had raised the statutory construction issue in the trial court, he still would not be entitled to relief because, at the time Smith was sentenced in 1995, “the decision to impose the twenty-five points pursuant to the statute was not contrary to any higher court decisions.” Thus, even if White could somehow be said to support Smith’s argument here, White should not be retroactively applied to post-conviction proceedings. Mathis v. State, 719 So. 2d 348, 349 (Fla. 5th DCA 1998).

As to the other issues raised, we also affirm.

STONE, C.J., POLEN and GROSS, JJ., concur.


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Citator

Cited By

  • Higgs v. State, 801 So. 2d 269 (Fla. 4th DCA 2001)
    …ated in s. 775.087(2) while having in his or her possession: a firearm.” Because appellant was convicted of attempted manslaughter, a crime not specifically enumerated in section 775.087(2), the assessment of points was required. Cf. Smith v. State, 737 So. 2d 577, 578 (Fla. 4th DCA 1999) (holding a defendant convicted of attempted manslaughter with a firearm was properly assessed with points for possessing a firearm because the felony was not specifically predicated on possession of a firearm and such an imp…
  • Gomez v. State, 745 So. 2d 571 (Fla. 5th DCA 1999)
    …s court has already held that White is not to be applied retroactively, see Mathis v. State, 719 So. 2d 348 (Fla. 5th DCA 1998), and despite appellant’s argument, we are not persuaded that the issue was incorrectly decided. See also, Smith v. State, 737 So. 2d 577 (Fla. 4th DCA 1999). Appellant’s sentence was legal when imposed, and the trial court did not err in denying his motion to correct it. AFFIRMED. ANTOON, C.J., and THOMPSON, J„ concur.…

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