Fonseca v. State, 89-2541
| Decision Date | 27 November 1990 |
| Docket Number | No. 89-2541,89-2541 |
| Citation | 570 So.2d 424 |
| Parties | 15 Fla. L. Weekly D2884 Rafael FONSECA, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An Appeal from the Circuit Court of Dade County; Alfonso C. Sepe, Judge.
Bennett H. Brummer, Public Defender, and Robert Burke, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before JORGENSON, LEVY and GODERICH, JJ.
The defendant, Rafael Fonseca, appeals his convictions and sentences for second-degree murder with a firearm and possession of a firearm while engaged in a criminal offense. We reverse in part, affirm in part and remand.
The defendant contends, and the State properly concedes, that the trial court erred in entering convictions for both second-degree murder with a firearm and unlawful possession of a firearm while engaged in a criminal offense. See Carawan v. State, 515 So.2d 161 (Fla.1987). Accordingly, the defendant's conviction for unlawful possession of a firearm while engaged in a criminal offense is reversed.
Additionally, the trial court erred in departing from the sentencing guidelines without providing written reasons. See Pope v. State, 561 So.2d 554 (Fla.1990). Accordingly, this cause is remanded for imposition of a sentence within the sentencing guidelines.
As in State v. Smith (Fla. 3d DCA case no. 89-3012, opinion filed June 5, 1990) [15 F.L.W. D1520], and State v. Whipple (Fla. 3d DCA case no. 89-2606, opinion filed July 24, 1990) [15 F.L.W. D1916], we recognize that the defendant was sentenced prior to the issuance of the Pope decision. Since we are applying Pope retroactively, we certify the following question to the Supreme Court of Florida as a question of great public importance:
SHOULD POPE V. STATE BE APPLIED RETROACTIVELY TO SENTENCES IMPOSED PRIOR TO APRIL 26, 1990?
The defendant's remaining points raised on appeal lack merit.
Affirmed in part, reversed in part and remanded.
To continue reading
Request your trial
-
Magrans v. State, 89-2981
...RETROACTIVELY TO SENTENCES IMPOSED PRIOR TO APRIL 26, 1990? See Crenshaw v. State, 570 So.2d 349 (Fla. 3d DCA 1990); Fonseca v. State, 570 So.2d 424 (Fla. 3d DCA 1990); State v. Reliford, 568 So.2d 534 (Fla. 3d DCA 1990), review dismissed, 576 So.2d 290 (Fla.1991); Stennis v. State, 567 So.......
-
Day v. State, 89-01267
...We disagree and join with the Third District Court which has concluded that Pope should apply retroactively. See Fonseca v. State, 570 So.2d 424 (Fla. 3d DCA 1990). Reversed and remanded with directions to impose a guidelines SCHOONOVER, C.J., and PATTERSON, J., concur. 1 See Day v. State, ......
-
Parrado v. State, 90-1691
...was handed down. This court has held that Pope applies retroactively, but has consistently certified the question. See Fonseca v. State, 570 So.2d 424 (Fla. 3d DCA 1990); Perez v. State, 566 So.2d 881 (Fla. 3d DCA 1990). We again certify the question of whether Pope should be applied Accord......
-
Fonseca v. State, 89-2541
...possession of a firearm while engaged in a criminal offense and remanded for resentencing within the guidelines. Fonseca v. State, 570 So.2d 424 (Fla. 3d DCA1990). The Florida Supreme Court quashed this court's opinion and remanded for further reconsideration. State v. Fonseca, 598 So.2d 10......