Massard v. State, 84-1741

CourtCourt of Appeal of Florida (US)
Writing for the CourtHERSEY; DOWNEY, J., and LEVY, DAVID L.
Citation11 Fla. L. Weekly 1561,501 So.2d 1289
Parties11 Fla. L. Weekly 1561 Christian Daniel MASSARD, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 84-1741,84-1741
Decision Date16 July 1986

Page 1289

501 So.2d 1289
11 Fla. L. Weekly 1561
Christian Daniel MASSARD, Appellant,
v.
STATE of Florida, Appellee.
No. 84-1741.
District Court of Appeal of Florida,
Fourth District.
July 16, 1986.

Page 1290

Richard L. Jorandby, Public Defender and Jeffrey Anderson, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.

ON REHEARING

HERSEY, Chief Judge.

We substitute the following for the opinion of May 7, 1986, filed in this case. Except for the modification exemplified by the amended opinion, rehearing is denied.

Christian D. Massard was convicted by a jury of two counts of attempted first-degree murder and two counts of robbery with a deadly weapon. We affirm those convictions.

In the judgment adjudicating appellant guilty of these offenses, each of the four felonies was enhanced from first-degree felony to life felony on the basis that a weapon or firearm was used in each instance. § 775.087(1)(a), Fla.Stat. (1983).

On each of the murder counts the jury returned a verdict of: "Guilty of Attempted First Degree Murder, as charged." The information charged that these two offenses were each committed with a blunt instrument. The jury was instructed to the effect that a deadly weapon was a weapon used in a way likely to produce death or great bodily harm. The instruction pertained to the lesser-included offense of aggravated battery. Thus, the jury, having been instructed on the definition of a deadly weapon and finding appellant guilty of attempted first-degree murder "as charged" in the information, which recites the use of a blunt instrument, has made a sufficiently specific finding that the offenses were committed with the use of a weapon. Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984), rev. denied, 462 So.2d 1108 (Fla.1985).

The same analysis does not apply to the robbery convictions, however, because use of a weapon is an essential element of the crime of armed robbery. § 812.13(2)(a), Fla.Stat. (1983). It may not also be used to reclassify the offense. State v. Brown, 476 So.2d 660 (Fla.1985). Therefore, on remand the judgment is to be amended by reducing the robbery convictions to first-degree felony convictions.

Because the sentencing phase of these proceedings was fatally flawed, requiring that appellant be resentenced, we briefly treat each appellate contention pertaining to the original sentencing.

Appellant contends that where the sentencing guidelines have been amended, the version in effect at the time of the commission of the offense applies. This contention is supported by our holding in Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985). The Miller holding, however, has been implicitly disapproved by the Supreme Court of Florida in State v. Jackson, 478 So.2d 1054 (Fla.1985), where the court held that the version of the guidelines in effect at the time of sentencing is to be applied by the...

To continue reading

Request your trial
13 practice notes
  • State v. Malarney, s. 91-1003 and 91-1127
    • United States
    • Court of Appeal of Florida (US)
    • 7 Abril 1993
    ...v. State, 566 So.2d 270 (Fla. 2d DCA), rev. denied, 581 So.2d 165 (Fla.1991). "Guilty as charged" means just that. See Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), rev. dismissed, 504 So.2d 403 (Fla.1987). Here, it is obvious that the verdict referred to the only instruction given ......
  • Morganti v. State, 87-0312
    • United States
    • Court of Appeal of Florida (US)
    • 12 Agosto 1987
    ...status as an habitual offender. Moreover, on July 16, 1986, while appellant's appeal was pending, this Court decided Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), in which it also held that habitual offender status was a valid reason for departure from the However, on October 30, 19......
  • Abt v. State, 4-86-1003
    • United States
    • Court of Appeal of Florida (US)
    • 1 Abril 1987
    ...is invalid. State v. Mischler, 488 So.2d 523 (Fla.1986); State v. Cote, 487 So.2d at 1039; Williams, 492 So.2d at 1308; Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986). The fifth reason is also invalid. Williams, 492 So.2d at 1308; Scurry v. State, 489 So.2d 25 We therefore affirm defe......
  • Abt v. State, 87-1715
    • United States
    • Court of Appeal of Florida (US)
    • 13 Julio 1988
    ...Abt, 504 So.2d at 550. See also State v. Mischler, 488 So.2d 523 (Fla.1986); State v. Cote, 487 So.2d 1039 (Fla.1986); Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), rev. dismissed, 504 So.2d 403 Reasons 4, 5, 6 and 7 are new reasons given by the trial judge. In Shull v. Dugger, 515 ......
  • Request a trial to view additional results
13 cases
  • State v. Malarney, s. 91-1003 and 91-1127
    • United States
    • Court of Appeal of Florida (US)
    • 7 Abril 1993
    ...v. State, 566 So.2d 270 (Fla. 2d DCA), rev. denied, 581 So.2d 165 (Fla.1991). "Guilty as charged" means just that. See Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), rev. dismissed, 504 So.2d 403 (Fla.1987). Here, it is obvious that the verdict referred to the only instruction given ......
  • Morganti v. State, 87-0312
    • United States
    • Court of Appeal of Florida (US)
    • 12 Agosto 1987
    ...status as an habitual offender. Moreover, on July 16, 1986, while appellant's appeal was pending, this Court decided Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), in which it also held that habitual offender status was a valid reason for departure from the However, on October 30, 19......
  • Abt v. State, 4-86-1003
    • United States
    • Court of Appeal of Florida (US)
    • 1 Abril 1987
    ...is invalid. State v. Mischler, 488 So.2d 523 (Fla.1986); State v. Cote, 487 So.2d at 1039; Williams, 492 So.2d at 1308; Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986). The fifth reason is also invalid. Williams, 492 So.2d at 1308; Scurry v. State, 489 So.2d 25 We therefore affirm defe......
  • Abt v. State, 87-1715
    • United States
    • Court of Appeal of Florida (US)
    • 13 Julio 1988
    ...Abt, 504 So.2d at 550. See also State v. Mischler, 488 So.2d 523 (Fla.1986); State v. Cote, 487 So.2d 1039 (Fla.1986); Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), rev. dismissed, 504 So.2d 403 Reasons 4, 5, 6 and 7 are new reasons given by the trial judge. In Shull v. Dugger, 515 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT