Franklin v. State, 88-988
| Decision Date | 03 February 1989 |
| Docket Number | No. 88-988,88-988 |
| Citation | 541 So.2d 1227,14 Fla. L. Weekly 365 |
| Parties | 14 Fla. L. Weekly 365 Jeffrey Lamar FRANKLIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and T. Orin Lee, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant, Jeffrey Lamar Franklin, challenges the trial court order that enhanced his third degree murder conviction, a second degree felony, to a first degree felony under section 775.087(1), Florida Statutes (1987) because appellant used a weapon while committing the felony. He argues that his use of a weapon was an essential element of the offense and should not have been used to enhance his sentence under section 775.087(1). We agree.
Appellant was charged with murder in the second degree as a result of events that occurred on June 16, 1987. The information charged that appellant killed Steven Stanley Yulee by stabbing him with a broken bottle. The jury found appellant guilty of the lesser included offense of third degree murder based on the following charge:
Before you can find the defendant guilty of third-degree murder, the State must prove the following three elements beyond a reasonable doubt:
1. Steven Stanley Yulee is dead.
2. The death occurred as a consequence of and while Jeffrey Lamar Franklin was engaged in aggravated battery.
The elements of aggravated battery are when one person intentionally touches or strikes another against his will, and when the person doing the striking uses a deadly weapon in committing the battery.
A weapon is a deadly weapon if it's used or threatened to be used in a way likely to produce death or great bodily harm.
Thus, in order to find appellant guilty of third degree murder under the facts of this case and the charge given by the trial judge, the jury had to find that appellant had committed a fatal battery that was aggravated by his use of a deadly weapon. The jury also made a specific finding that appellant had used a weapon. The trial court then enhanced appellant's sentence from third degree murder, a second degree felony, to a first degree felony under section 775.087(1) on the grounds that appellant had used a weapon, the broken bottle, when he committed the felony. We believe this enhancement was error.
Section 775.087(1) requires trial courts to reclassify felonies upward, "whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant uses ... any weapon or firearm...."
Section 775.087(1) thus has two requirements before a court may reclassify an offense. First, appellant must be charged with a felony for which the use of a weapon is not an essential element. Second, the jury must make a factual finding that appellant used a weapon. Douglas v. State, 523 So.2d 704 (Fla. 2d DCA 1988); State v. Overfelt, 457 So.2d 1385 (Fla.1984). We encounter our difficulty here with the first requirement only. Although appellant was charged with second degree murder, a felony for which the use of a weapon is not an essential element, he was convicted of a felony for which the use of a weapon under the charge given the jury by the trial court, was an essential element. Although the information did not specifically charge appellant with a felony for which the use of a weapon is an essential element, other factors present in this case worked...
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Gonzalez v. State, 88-2542
...407 So.2d 223 (Fla. 2d DCA 1981); Pedrera v. State, 401 So.2d 823 (Fla. 3d DCA 1981). We acknowledge conflict with Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989). Therefore, the judgment and sentence, except as to costs, is affirmed. As to costs, the sentence is reversed and remanded ......
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Vickers v. State
...held that a sentence cannot be enhanced for the use of a weapon when its use is an essential element of the crime charged. See Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989, approved, Gonzalez v. State, 585 So.2d 932 (Fla.1991; Cherry v. State, 540 So.2d 146 (Fla. 4th DCA 1989; Pinker......
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Minor v. State
...any additional enhancement. Defendant also relies on Garner v. State, 613 So.2d 584 (Fla. 4th DCA 1993), and Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989), approved, Gonzalez v. State, 585 So.2d 932 (Fla.1991), but those cases are not on point. In Franklin v. State, defendant was con......
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State v. Trejo, 89-00497
...State v. Whitehead, 472 So.2d 730 (Fla.1985). The trial court's order of dismissal relies upon our decision in Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989). There, as in the present case, the defendant was charged with second degree murder by use of a weapon. The jury, however, conv......