LARRY PORTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Porter appealed the trial court's partial denial of his postconviction motion challenging his plea-based convictions for second-degree murder and attempted armed robbery. The court reversed the sentencing portion, finding that Porter's attempted robbery sentence of 35 years exceeded the statutory maximum of 15 years and was therefore illegal.
The court reversed the trial court's denial of Porter's sentencing claims. The 35-year sentence for attempted armed robbery was illegal because attempted first-degree felony robbery constitutes only a second-degree felony with a maximum sentence of 15 years, not 35 years. The second-degree murder reclassification was improper if Porter did not personally carry the firearm, as section 775.087 does not permit vicarious enhancement.
[1] A sentence exceeding the statutory maximum for the offense of attempted robbery with a firearm is illegal and subject to correction in postconviction proceedings.
[2] Reclassification of a second-degree murder charge to a life felony based on firearm use is not permitted if the defendant did not carry the firearm.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If this is the case, Porter is not subject to the reclassification provisions of section 775.087, Florida Statutes (1989). See State v. Rodriguez, 602 So.2d 1270 (Fla.1992) (holding that section 775.087(1) does not permit vicarious enhancement).”
Establishes that firearm enhancement requires personal conduct, not vicarious liability
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Join FLexlaw to unlock all legal intelligenceFollowing vacation of Porter's original first-degree murder and attempted robbery convictions, he entered a plea agreement and pleaded guilty to secon…
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PER CURIAM.
Larry Porter appeals the order of the trial court that denies in part and grants in part his motion for postconviction relief. We reverse the portion of the trial court’s order that addresses Porter’s sentencing claims and affirm the balance of the order without discussion.
Following vacation of Porter’s convictions for first-degree murder and attempted robbery, Porter, pursuant to a plea agreement, pleaded guilty to second-degree murder and attempted armed robbery. The court sentenced Porter to two concurrent terms of thirty-five years for each offense. He now challenges the denial of his motion which attacked these convictions and sentences.
The trial court, in accordance with the plea agreement, reclassified Porter’s second-degree murder charge to a life felony, based on the use of a firearm during the murder. During the plea colloquy, the prosecutor mentioned that Porter did not carry the firearm. If this is the case, Porter is not subject to the reclassification provisions of section 775.087, Florida Statutes (1989). See State v. Rodriguez, 602 So. 2d 1270 (Fla.1992) (holding that section 775.087(1) does not permit vicarious enhancement). Second-degree murder is a first-degree felony, punishable by a term not exceeding life, and Porter’s sentence will not be affected by the correction of the classification of his crime. He negotiated a plea for a specific sentence, and the sentencing guidelines do not apply.
Porter was sentenced to thirty-five years for attempted robbery with a firearm.' Section 812.13, Florida Statutes (1989), classifies robbery with a firearm as a felony of the first-degree, punishable by life. Section 777.04(4)(b), Florida Statutes (1989), provides that an attempt to commit a first-degree felony constitutes a second-degree felony. The maximum sentence for a second-degree felony is fifteen years. Accordingly, the thirty-five year sentence exceeds the statutory maximum, is illegal, and is subject to correction in a postconvic tion proceeding. See Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991).
We reverse the order of the trial court, and direct it to reconsider these claims in light of this opinion. At resentencing on the attempted robbery, the State may elect to set aside the plea, if the corrected sentence deprives it of the benefit of the plea bargain, after which the State would be free to pursue a conviction for first-degree murder. See Daniels v. Smith, 478 So. 2d 110 (Fla. 2d DCA 1985).
Affirmed in part, reversed in part, and remanded.
PATTERSON, A.C.J., and FULMER and NORTHCUTT, JJ., Concur.
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Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)…during the offense); Parker v. State, 906 So. 2d 1273 (Fla. 5th DCA 2005) (noting that reclassification under section 775.087(1) is impermissible unless the defendant actually possesses a weapon during the commission of the crime); Porter v. State, 737 So. 2d 1119, 1119 (Fla. 2d DCA 1999) (citing Rodriguez for the proposition “that section 775.087(1) does not permit vicarious enhancement”); Clark v. State, 701 So. 2d 912 (Fla. 4th DCA 1997) (same; citing to Rodriguez, and Williams v. State, 622 So. 2d 456 (Fl…
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Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011)…cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.” State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla.1992); see also Porter v. State, 737 So. 2d 1119, 1119 (Fla. 2d DCA 1999) (citing Rodriguez for the proposition “that section 775.087(1) does not permit vicarious enhancement”). Accordingly, we affirm Mr. Chase’s conviction for aggravated battery with great bodily harm and the use of a deadly we…
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Kendrick Devlin v. State, 805 So. 2d 857 (Fla. 2d DCA 2001)…Nathan, 689 So. 2d at 1152 n. 5. However, should the State decide the corrected sentence deprives it of the benefit of the bargain, it may elect to set aside Devlin’s pleas to attempted first-degree murder and grand theft auto. See Porter v. State, 737 So. 2d 1119 (Fla. 2d DCA 1999). The State may then proceed on the charges of attempted first-degree murder with a weapon and grand theft auto, and if Devlin is convicted as charged, the trial court may consider departing from the guidelines and imposing the max…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- State v. Anibal Rodriguez, 602 So. 2d 1270 (Fla. 1992)
- Daniels v. Honorable Gilbert A. Smith, 478 So. 2d 110 (Fla. 2d DCA 1985)