King v. State, 96-4263

• Decision Date: 28 January 1998
• Docket Number: No. 96-4263,96-4263
• Citation: 705 So.2d 668
• Parties: 23 Fla. L. Weekly D334 Michael KING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 668

705 So.2d 668

23 Fla. L. Weekly D334

Michael KING, Appellant, v. STATE of Florida, Appellee.

No. 96-4263.

District Court of Appeal of Florida,

Fourth District.

Jan. 28, 1998.

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

STONE, Chief Judge.

We reverse Appellant's life sentence imposed in count I; in all other respects, Appellant's sentence is affirmed.

Appellant was convicted and sentenced 15 years ago on counts charging attempted first-degree murder, battery on a law enforcement officer, possession of a firearm by a felon, burglary, grand theft, and possession of a concealed firearm during commission of a felony. He was sentenced as a habitual offender, and subsequently resentenced.

Attempted first-degree murder is a first-degree felony, punishable "by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment." § 775.082(3)(b), Fla. Stat. (1995). The offense may be reclassified to a "life felony" pursuant to section 775.087(1), Fla. Stat. (1995), which provides that:

[W]henever 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 carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

(a) In the case of a felony of the first degree, to a life felony.

In 1991 and 1992, new judgment forms were filed which erroneously adjudicated Defendant guilty of attempted first-degree murder with a firearm, a life felony. When Defendant appeared for another resentencing in 1996, the court mistakenly considered the offense to be a life felony. However, it is undisputed that the jury verdict in this case did not contain a finding by the jury that Defendant used a firearm in commission of the attempted first-degree murder charge.

It is well established that before a court may enhance a defendant's sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm, either by finding him guilty of a crime which involves a firearm or by stating so on the verdict form. See e.g. Hargrove v. State, 675 So.2d 1010 (Fla. 4th DCA 1996), approved, 694 So.2d 729 (Fla.1997); State v. Overfelt, 457 So.2d 1385 (Fla.1984). In Hargrove, a defendant was convicted of second-degree murder and was given a mandatory minimum sentence for use of a firearm. The defendant was charged with murder "by shooting [victim] with a firearm," and the defendant never contested that he shot the victim. In closing argument, defense counsel told the jury that the only issue for them to decide was whether the defendant was legally insane at the time of the shooting. This court reversed the defendant's sentence for lack of a specific finding by the jury that the defendant committed the crime while using a firearm, despite the fact that death resulted from a gunshot...