Hurd v. State

• Decision Date: 27 October 2017
• Docket Number: Case No. 5D17–1802
• Citation: 229 So.3d 876
• Parties: Rodney HURD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

229 So.3d 876

Rodney HURD, Appellant,
v.
STATE of Florida, Appellee.

Case No. 5D17–1802

District Court of Appeal of Florida, Fifth District.

Opinion filed October 27, 2017

Rodney Hurd, White City, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.

EISNAUGLE, J.

Appellant, Rodney Hurd, appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant argues that the trial court illegally reclassified his convictions for attempted voluntary manslaughter and resisting an officer with violence pursuant to section 775.087(1), Florida Statutes (2010), based on his use of an automobile as a weapon, citing to Gonzalez v. State, 197 So.3d 84 (Fla. 2d DCA 2016). We find no error and affirm.

In Gonzalez, our sister court held, as a matter of law, that an automobile is not a weapon as that term is used in section 775.087(1). 197 So.3d at 86. In that case, the trial court reclassified a manslaughter conviction, pursuant to section 775.087(1), because the defendant used an automobile as a weapon when he backed over his victim. Id. at 84–85. On appeal, the second district reversed, relying on the supreme court's analysis in State v. Houck, 652 So.2d 359 (Fla. 1995), and State v. Burris, 875 So.2d 408 (Fla. 2004).

In Houck, the jury found the defendant guilty of manslaughter with a weapon where the defendant beat the victim's head against the pavement resulting in the victim's death. 652 So.2d at 359. The trial court reclassified the offense to a first-degree felony pursuant to section 775.087(1) based on the defendant's use of the pavement as a weapon. Id. On appeal, this court reversed, holding that pavement is not a weapon pursuant to section 775.087(1), and certified the issue as one of great public importance. Id. at 359–60. In so doing, we observed that "[o]ther jurisdictions have strictly construed their statutes to conclude that pavement and other stationary fixtures are not dangerous or deadly weapons." Houck v. State, 634 So.2d 180, 182–83 (Fla. 5th DCA 1994) (emphasis added).

229 So.3d 878

On review, the supreme court agreed and held that pavement is not a "weapon" as that term is used in section 775.087(1). Houck, 652 So.2d at 360. The statute does not define the term, so the court consulted the American Heritage College Dictionary, which defined "weapon" as: "1. An instrument of attack or defense in combat, as a gun or sword.... 3. A means used to defend against or defeat another." Id. (quoting American Heritage College Dictionary 1529 (3d ed. 1993)). Thus, the court reasoned that a paved surface is not commonly understood to be an "instrument for combat against another person." Id. However, the court also invited the Legislature to amend the statute if it intended for pavement and "similar passive objects" to be considered weapons. Id.

Later in Burris, the supreme court considered whether an automobile could be "carried" as a "deadly weapon" for purposes of the robbery statute. 875 So.2d at 410. In that case, the defendant grabbed the victim's purse as he drove by, dragging her with his pickup truck. Id. at 409. The defendant was charged by information alleging that he "used" his truck as a deadly weapon. Id. He moved to dismiss the charge, arguing that the robbery statute only prohibited "carrying" a weapon, not "using" one, but the trial court denied the motion. Id. On appeal, this court reversed and held that an automobile could not be...