McKinnon v. State, BT-109
| Decision Date | 20 April 1988 |
| Docket Number | No. BT-109,BT-109 |
| Citation | 13 Fla. L. Weekly 970,523 So.2d 1238 |
| Parties | 13 Fla. L. Weekly 970 Webster F. McKINNON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and David P. Gauldin, Sp. Asst. Public Defender, Tallahassee, for appellant.
Webster F. McKinnon, pro se.
Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Webster McKinnon challenges pro se his convictions and sentences for manslaughter and use of a weapon during the commission of a felony, his assistant public defender having filed a brief asserting that he could not, in good faith, argue that the trial court had committed reversible error. We reverse the conviction for use of a weapon during the commission of a felony, and remand for correction of the judgment to reflect reclassification of the manslaughter conviction under section 775.087(1)(b), Florida Statutes (1985), and for resentencing using a corrected sentencing guidelines scoresheet.
Three of the five issues raised by appellant are without merit. The last issue, ineffective assistance of trial and appellate counsel, is not properly raised on appeal, and we do not comment on the merits of this issue. Ineffective assistance of trial counsel is challenged by motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, while ineffective assistance of appellate counsel is challenged by petition for writ of habeas corpus.
However, appellant's assertion that 136 points were improperly assigned on the scoresheet to the primary offense of manslaughter as a first degree felony merits further discussion. The parties were ordered to file supplemental briefs on the related issues of whether section 775.087(1)(b) requires the trial court to correct the judgment to reclassify the manslaughter offense of count I to a first degree felony and if so, whether under Hall v. State, 517 So.2d 678 (Fla.1988), and Carawan v. State, 515 So.2d 161 (Fla.1987), appellant can properly be convicted of both the reclassified felony and the count II offense of displaying or using a firearm during the commission of a felony.
Appellant, owner of the "Red Carpet Lounge," was charged with second degree murder and display or use of a firearm during the commission of a felony as a result of the shooting death of a patron of the lounge. The jury found him guilty of manslaughter, a lesser included offense of second degree murder, and of display or use of a weapon during the commission of a felony. Appellant objected to the scoring of the manslaughter offense as a first degree felony, asserting such an "enhancement" was improper without a specific finding that a firearm was used. The judgment does not reflect a reclassification of the manslaughter offense to a first degree felony, although the judge's comments at sentencing indicate that he felt the guilty verdict on count II provided the specific finding required for reclassification.
The assistant public defender, asserting in his supplemental brief that he has rethought his original position "until his head hurt," argues that section 775.087(1)(b) does not permit the trial court to reclassify the manslaughter offense, because conviction on one count in an information may not be used to enhance the punishment for conviction on another count. In other words, appellant's counsel contends that appellant may be convicted on both counts, but that the manslaughter offense may not be reclassified to a first degree felony.
The State argues that under the instructions given in this case, the jury made...
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