JAMES SMART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2013-06-03
No. 1D11-0380
BENTON, C.J., ROWE, and MARSTILLER, JJ., CONCUR.
114 So. 3d 1048 Florida District Court of Appeal, First District (2013) Positive Treatment
Cited by 8 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

James Smart appeals his convictions for attempted second-degree murder and attempted armed robbery. The court affirms the convictions and the consecutive sentencing scheme but reverses the illegal life sentences imposed on the attempted murder counts, which should have been capped at 30 years under the statutory maximum for first-degree felonies.


Holding

The life sentences were illegal because attempted second-degree murder is a second-degree felony that, when committed with a firearm, is reclassified to a first-degree felony with a statutory maximum of 30 years, not life. However, the consecutive mandatory minimum sentencing scheme was proper under section 775.087(2)(d). The attempted murder statute (section 782.065) cannot apply because it was not effective until October 1, 2008, and Smart committed the crimes on September 10, 2008.


Headnotes

[1] An attempted second-degree felony is reclassified to a first-degree felony when the defendant possesses a firearm during the commission of the offense, and the statutory…

[2] A statute creating a crime and mandating a life sentence cannot be applied to offenses committed before the statute's effective date.

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Key Quotes

“Because attempted second-degree murder is a second-degree felony, and the jury expressly found that Appellant possessed and discharged a firearm while committing the attempted murders, the trial court should have reclassified the crimes to first-degree felonies, for which the statutory maximum prison term is 30 years.”

Establishes the basis for reversing the illegal life sentences based on proper felony classification under the 10-20-Life statute.

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Facts & Procedural History

Smart was convicted of two counts of attempted second-degree murder and two counts of attempted armed robbery. The jury expressly found that Smart pos…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

James Smart (“Appellant”) appeals his convictions and sentences for two counts of attempted second-degree murder (Counts 3 and 4) and two counts of attempted armed robbery (Counts 5 and 6). We affirm the convictions without discussion. As to the sentences, Appellant asserts that the trial court imposed illegal sentences of life imprisonment for the two attempted second-degree murder counts, and that the court impermissibly imposed the consecutive mandatory mínimums under section 775.087(2)(d), Florida Statutes. For the following reasons, we agree with Appellant that the life sentences are illegal, but we approve the consecutive sentencing scheme.

Section 782.04(2) proscribes second-degree murder, and classifies this offense as a first-degree felony. See § 782.04(2), Fla. Stat. (2008). Section 777.04(1) proscribes a “criminal attempt” to commit any offense prohibited by law, and provides that an attempted first-degree felony is classified as a second-degree felony. See §§ 777.04(1), (4)(c), Fla. Stat. (2008). However, under the 10-20-Life statute, when the defendant possesses a firearm while committing a second-degree felony, the crime shall be reclassified to a first-degree felony. See § 775.087(l)(b), Fla. Stat. (2008). Because attempted second-degree murder is a second-degree felony, and the jury expressly found that Appellant possessed and discharged a firearm while committing the attempted murders, the trial court should have reclassified the crimes to first-degree felonies, for which the statutory maximum prison term is 30 years. See § 775.082(3)(b), Fla. Stat. (2008).

The State contends that the life sentences are permissible, nevertheless, under section 782.065, which creates the crime of attempted murder of a police officer and mandates a life sentence. See § 782.065(1), Fla. Stat. (2008). Indeed, both the charging document and the final judgment of conviction in this case label the pertinent crime “attempted murder of a police officer.” However, Appellant committed the attempted murders on September 10, 2008, and section 782.065 did not become effective until October 1, 2008. See Ch. 2008-74, § 1, at 1, Laws of Fla.; Lebron v. State, 799 So.2d 997, 1019 (Fla.2001) (“[I]t is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed”).

As to the consecutive mandatory minimum sentences, we held in Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (en banc), that any minimum sentence required by section 775.087(2)(d), the “10-20-Life” statute, shall be imposed consecutively to any other term imposed for any other felony offense, whether the defendant fires a gun or only carries/displays a firearm, and whether or not the crimes occurred during a single episode.1 The sentencing scheme employed in Appellant’s case is therefore correct.

We reverse Appellant’s life sentences on Counts 3 and 4, and remand for resentenc-ing, for which Appellant must be present. See Walton, 106 So.3d at 528-29. Appel*1050lant’s convictions and sentences are otherwise affirmed.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

BENTON, C.J., ROWE, and MARSTILLER, JJ., CONCUR.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Alva W. Fleming v. State, 135 So. 3d 531 (Fla. 1st DCA 2014)
    …tence for Count II (possession of a firearm by a convicted felon) imposed consecutively to Count I (attempted first degree murder), such a consecutive sentence is mandated. See Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013), and Smart v. State, 114 So. 3d 1048 (Fla. 1st DCA 2013). AFFIRMED. WOLF, VAN NORTWICK, and MARSTILLER, JJ., concur.…
  • Dalvin Lorenzo Denson v. State, 143 So. 3d 1198 (Fla. 1st DCA 2014)
    …of consecutive mandatory minimum sentences aggregating seventy-five years, pursuant to section 775.087(2)(d), Florida Statutes (2011). We affirm on the basis of stare decisis. See Fleming v. State, 135 So. 3d 531 (Fla. 1st DCA 2014); Smart v. State, 114 So. 3d 1048 (Fla. 1st DCA 2013). See also Morgan v. State, 137 So. 3d 1075 (Fla. 3d DCA 2014). But see Roberts v. State, 990 So. 2d 671 (Fla. 4th DCA 2008); Perry v. State, 973 So. 2d 1289 (Fla. 4th DCA 2008); Church v. State, 967 So. 2d 1073 (Fla. 2d DCA 2007)…
  • Moore v. State, 148 So. 3d 865 (Fla. 1st DCA 2014)
    …PER CURIAM. AFFIRMED. Walton v. State, 106 So. 3d 522, 528 (Fla. 1st DCA 2013) (en banc); Smart v. State, 114 So. 3d 1048 (Fla. 1st DCA 2013). THOMAS, ROBERTS, and ROWE, JJ., concur.…

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