DOUGLAS TUNSIL, III, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Douglas Tunsil appeals an order denying his motion to correct an illegal sentence. The court reverses, finding that the trial court impermissibly enhanced third degree murder to first degree felony based on firearm use that had already been considered in a separate aggravated assault charge, and that mandatory minimum sentences should run concurrently rather than consecutively.
The court held that enhancing third degree murder based on firearm use was impermissible under Gonzalez v. State because the firearm consideration was already incorporated into the aggravated assault charge. As an HVFO, Tunsil's maximum sentence on count one should be thirty years with a mandatory minimum of ten years. Additionally, the mandatory minimum sentences should run concurrently because both crimes occurred during the same criminal episode.
[1] Enhancing a third-degree murder conviction to a first-degree felony based on firearm use is impermissible when firearm use has already been considered in an underlying ch…
[2] A claim for sentence correction based on an impermissible felony enhancement is available through a motion under Florida Rule of Criminal Procedure 3.800(a).
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“Under the rule announced in Gonzalez, it was impermissible to enhance the third degree murder on account of the use of a firearm, as the use of a firearm had already been taken into account in the underlying charge of aggravated assault with a firearm.”
Establishes the core legal error: double-counting of the firearm element in two separate charges from the same criminal episode.
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Join FLexlaw to unlock all legal intelligenceTunsil was convicted of count one (third degree murder with a firearm) and count two (aggravated assault with a firearm). The trial court classified t…
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COPE, J.
Douglas Tunsil, III, appeals an order denying his motion to correct illegal sentence. We reverse.
Defendant-appellant Tunsil was convicted on count one, third degree murder with a firearm, and count two, aggravated assault with a firearm.
On count one, third degree murder is a second degree felony. § 782.04(4), Fla. Stat. (1993). The trial court enhanced the crime to a first degree felony on account of the use of a firearm. Id. § 775.087(1).
The court determined that the defendant was a habitual violent felony offender (“HVFO”) and imposed a life sentence with a mandatory minimum term of fifteen years. Id. § 775.084(4)(b)l.
By motion to correct illegal sentence, defendant contends that enhancement of third degree murder to a first degree felony was impermissible under Gonzalez v. State, 585 So. 2d 932, 933 (Fla.1991). Defendant’s argument is well taken. Under the rule announced in Gonzalez, it was impermissible to enhance the third degree murder on account of the use of a firearm, as the use of a firearm had already been taken into account in the underlying charge of aggravated assault with a firearm. See id.
The State does not dispute this analysis, but argues that the claim is procedurally barred because it was raised in some fashion as part of an earlier postcon-viction motion. The earlier presentation of the issue was not entirely clear, and we are not convinced that the earlier denial of relief was on the merits. Moreover, the Florida Supreme Court has recently clarified that relief of this type is available through a motion under Florida Rule of Criminal Procedure 3.800(a). See Bover v. State, 797 So. 2d 1246 (Fla.2001); Garter v. State, 786 So. 2d 1173 (Fla.2001).
In the present case it is clear from the face of the record that count one, third degree murder, should have been classified as a second degree felony on the final judgment. Since the defendant is an HVFO, the maximum sentence on count one was thirty years with a mandatory minimum sentence of ten years. § 775.084(4)(b)2., Fla. Stat. (1993). Defendant’s sentence on count one must be reduced accordingly.
Defendant also argues that his mandatory minimum sentences should be concurrent rather than consecutive. When the court sentenced the defendant, the court ordered on each count that the three-year mandatory minimum sentence for use of a firearm run consecutively to the mandatory minimum sentence as an HVFO.
In this case defendant was convicted of one count of third degree murder, which by statutory definition is an unlawful killing, without any intent to cause death, by a person engaged in the perpetration of non-enumerated felony. Id. § 782.04(4). The non-enumerated felony in this ease is count two, aggravated assault with a firearm. By definition the two crimes occurred during the same criminal episode.
For that reason it is clear that the mandatory minimum sentences should be concurrent. See Jackson v. State, 659 So. 2d 1060, 1061, 1062-63 (Fla.1995); Jackson v. State, 712 So. 2d 467 (Fla. 4th DCA 1998); Sanchez v. State, 693 So. 2d 678 (Fla. 3d DCA 1997).
We therefore reverse the order now under review and remand for reduction of the sentences on count one to the legal maximum, and to correct the mandatory minimum sentences on both counts so that they run concurrently. Defendant need not be present.
Reversed and remanded for correction of sentence.
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Douglas v. State, 878 So. 2d 1246 (Fla. 2004)…ible to enhance the defendant's third-degree murder conviction to a first-degree felony based on the use of a firearm where "the jury was instructed that the use of a firearm was an essential element of third-degree felony murder”); Tunsil v. State, 797 So. 2d 651, 652-53 (Fla. 3d DCA 2001) (holding that under Gonzalez "it was impermissible to enhance the third degree murder on account of the use of a firearm, as the use of a firearm had already been taken into account in the underlying charge of aggravated a…
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Redwin Anderson Wilchcombe v. State, 842 So. 2d 198 (Fla. 3d DCA 2003)…utive sentences). Where, as here, two or more enhanced sentences arise out of the same criminal episode, the sentences should run concurrently. Jackson v. State, 659 So. 2d 1060 (Fla.1995); Palmer v. State, 438 So. 2d 1 (Fla.1983); Tunsil v. State, 797 So. 2d 651 (Fla. 3d DCA 2001); Lafleur v. State, 661 So. 2d 346 (Fla. 3d DCA 1995). Accordingly, we affirm the convictions, and remand this matter to the trial court for resentencing.…
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Anderson v. State, 988 So. 2d 144 (Fla. 1st DCA 2008)…because the use of a firearm has already been taken into ac [*146] count in the underlying charge of aggravated assault. See, e.g., Gonzalez v. State, 585 So. 2d 932 (Fla.1991); Collazo v. State, 936 So. 2d 782 (Fla. 4th DCA 2006); Tunsil v. State, 797 So. 2d 651 (Fla. 3d DCA 2001). The state does not dispute the merits of petitioner’s argument that his conviction was erroneously reclassified, asserting instead that this claim would not be cognizable in a rule 3.800(b)(2) motion, and appellate counsel ther…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carter v. State, 786 So. 2d 1173 (Fla. 2001)
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Gonzalez v. State, 585 So. 2d 932 (Fla. 1991)
- Jackson v. State, 659 So. 2d 1060 (Fla. 1995)
- Sanchez v. State, 693 So. 2d 678 (Fla. 3d DCA 1997)
- Florczak v. State, 712 So. 2d 467 (Fla. 4th DCA 1998)
- Jackson v. State, 712 So. 2d 467 (Fla. 4th DCA 1998)