Lee v. State, 95-56
| Decision Date | 25 March 1996 |
| Docket Number | No. 95-56,95-56 |
| Citation | 670 So.2d 169 |
| Court | Florida District Court of Appeals |
| Parties | 21 Fla. L. Weekly D753 Brian David LEE, Appellant, v. STATE of Florida, Appellee. |
An appeal from the Circuit Court for Okaloosa County; Jere Tolton, Judge.
John C. Harrison, P.A., Shalimar, for appellant.
Robert A. Butterworth, Attorney General; Patrick Martin, Assistant Attorney General, Tallahassee, for appellee.
Brian David Lee appeals from a judgment and sentence entered after being found guilty of third-degree murder, attempted third-degree murder, and shooting into an occupied vehicle. Appellant raises four points on appeal: (1) Whether the trial court erred in permitting the prosecutor to make improper remarks during closing argument; (2) whether the trial court erred in enhancing the degree of the crimes for which the appellant was sentenced; (3) whether it was error for the appellant to be excluded from a side bar conference when peremptory strikes were exercised; and (4) whether appellant's conviction for attempted third-degree murder must be reversed pursuant to State v. Gray, 654 So.2d 552 (Fla.1995).
We find no merit as to issue one, and affirm without further discussion. As to issue two, we find that appellant's conviction as to third-degree murder should not have been enhanced as a result of using a firearm; an essential element of the underlying offense was use of a firearm. See Gonzalez v. State, 585 So.2d 932 (Fla.1991). We, therefore, remand for entry of a new judgment and resentencing as to that issue.
As to issue three, we find no merit in appellant's position because the holding in Coney v. State, 653 So.2d 1009 (Fla.1995), cert. denied, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), was prospective only and does not apply in this case. See Lett v. State, 668 So.2d 1094 (Fla. 1st DCA 1996). We do, however, certify the same question as we certified in Lett:
DOES THE DECISION IN CONEY APPLY TO "PIPELINE CASES," THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT REVIEW OR NOT YET FINAL DURING THE TIME CONEY WAS UNDER CONSIDERATION BUT PRIOR TO THE ISSUANCE OF THE OPINION?
As to issue four, we reverse the conviction for attempted third-degree murder pursuant to State v. Gray, 654 So.2d 552 (Fla.1995). We, therefore, remand to the trial court pursuant to Pratt v. State, 668 So.2d 1007 (Fla. 1st DCA 1996), and certify the following questions as being of great public...
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