Asbell v. State
| Citation | 715 So.2d 258 |
| Decision Date | 16 July 1998 |
| Docket Number | No. 91078,91078 |
| Parties | 23 Fla. L. Weekly S400 Michael ASBELL, Petitioner, v. STATE of Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Petitioner.
Robert A. Butterworth, Attorney General, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Respondent.
We have for review Asbell v. State, 696 So.2d 857 (Fla. 5th DCA 1997), based on conflict with the opinion in White v. State, 689 So.2d 371 (Fla. 4th DCA 1997), quashed, 714 So.2d 440 (Fla.1998), concerning the issue of whether additional sentencing points for carrying or possessing a firearm during the commission of a crime may be added to a defendant's sentencing score where the defendant is convicted of carrying a concealed weapon or possession of a firearm by a convicted felon. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
We resolved this conflict in White v. State, 714 So.2d 440 (Fla.1998), wherein we held that it is error for the trial court to assess additional sentencing points for possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon. In other words, we held that Florida Rule of Criminal Procedure 3.702(d)(12) does not contemplate the addition of sentencing points for carrying or possessing a firearm where the carrying or possession of a firearm is the essential element of the underlying offense. In Asbell, the defendant was convicted of attempted first-degree murder and possession of a firearm by a convicted felon. The trial court assessed eighteen additional sentencing points for possessing a firearm during the commission of the possession offense. Under rule 3.702(d)(12) of the Florida Rules of Criminal Procedure, additional sentencing points for possession of a firearm may not be assessed against offenses enumerated in section 775.087(2), Florida Statutes (1993). Attempted murder is one of the enumerated offenses in section 775.087(2); therefore, it is not subject to enhancement under rule 3.702. Because attempted murder is not subject to the assessment of additional points for the possession of a firearm, the only remaining offense the trial court could conceivably have considered was petitioner's conviction for possession of a firearm by a convicted felon, which we found impermissible in White.
Therefore, in accordance with our decision in White, we quash the decision below. We also decline to review petitioner's second point on review as it is beyond the scope of the conflict issue. 1
It is so ordered.
The majority's opinion clearly usurps legislative authority by simply ignoring the plain language of section 921.0014(1), Florida Statutes. It is a serious error for this Court to violate the separation of powers doctrine, as do this decision and the majority's decision in White v. State, 714 So.2d 440 (Fla.1998). Regardless of the rationalization expressed, the majority's decision in sum is that the legislature's mandate for eighteen points for the commission of this felony while possessing a firearm is too harsh, so the majority's substitutes its judgment on the issue for that of the legislature.
I believe that it is wrong for ...
To continue reading
Request your trial
-
Murphy v. International Robotic Systems, Inc.
...new trial. However, because that issue is outside the scope of the conflict issue, we decline to address it. See, e.g., Ashell v. State, 715 So.2d 258, 258 (Fla.1998). Further, we consider the Plaintiffs' claim that the verdict was against the manifest weight of the evidence only to the ext......
-
Knowles v. State
...we decline to address any additional issues raised by the parties that are beyond the scope of the conflict issue. See Asbell v. State, 715 So.2d 258, 258 (Fla. 1998) (declining to address additional issues raised during discretionary conflict review). It is so ordered. ANSTEAD, C.J., and L......
-
State v. Walton
...J., dissents with an opinion. WELLS, Justice, dissenting. I dissent for the reasons stated in my dissenting opinions in Asbell v. State, 715 So.2d 258 (Fla.1998); and White v. State, 714 So.2d 440, 23 Fla. L. Weekly S311 ...
-
Williams v. State, SC03-139.
...We decline to address the additional issue raised by Williams that is beyond the scope of the conflict issue. See Asbell v. State, 715 So.2d 258, 258 (Fla.1998). It is so ANSTEAD, C.J., and LEWIS, QUINCE, and CANTERO, JJ., concur. BELL, J., concurs in result only. WELLS, J., dissents with a......