Miller v. State, 82-962
| Decision Date | 07 September 1983 |
| Docket Number | No. 82-962,82-962 |
| Citation | 438 So.2d 83 |
| Parties | Morris Lee MILLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
This is a statutory construction case. It involves Section 775.087(1), Florida Statutes (1981), which, under specified circumstances, allows for reclassification of a charged felony. The precise issue is whether the defendant, convicted of a lesser included felony offense, was "charged with" the lesser included offense, thus permitting reclassification of the lesser included felony under the statute. We answer in the affirmative.
The defendant was charged in an information with second degree murder with a handgun. In its instructions, the court informed the jury that the charge of second degree murder contains several lesser included offenses. The court instructed on each of the lesser included offenses. The jury returned a verdict of guilty of attempted second degree murder.
Attempted second degree murder is a second degree felony. Sections 777.04(4)(b) and 782.04(2), Florida Statutes (1981). It carries a sentence of up to fifteen years. Section 775.082(3)(c), Florida Statutes (1981). In the case at bar, however, it was established that the defendant used a handgun during the commission of the crime. Therefore, at sentencing, the trial court reclassified attempted second degree murder from a second degree to a first degree felony. Section 775.087(1)(b), Florida Statutes (1981). This, of course, enhanced the penalty from a possible sentence of fifteen years to a possible sentence of thirty years. Section 775.082(3)(b), Florida Statutes (1981). Exercising its discretion, the court imposed a sentence of twenty years with the requirement that the defendant serve a minimum term of three calendar years. Section 775.087(2)(a), Florida Statutes (1981). On appeal, the defendant cites Carroll v. State, 412 So.2d 972 (Fla. 1st DCA 1982), for the proposition that only those offenses which are expressly charged in the information--as opposed to those offenses which are impliedly charged as lesser included offenses--may be reclassified under Section 775.087(1), Florida Statutes (1981). Carroll involved an express charge of first degree murder, a capital felony. The defendant pled guilty to second degree murder, a first degree felony. On rehearing, the First District ruled that the offense of second degree murder could not be reclassified because the defendant had been charged with a capital felony. Implicit in this ruling is the holding that the defendant had not been charged with the necessarily included lesser offense of second degree murder. Most respectfully, we disagree with this hyper-technical construction of the term "charged," because it effectively subverts the legislative policy embodied in the reclassification statute.
Section 775.087(1), Florida Statutes (1981), provides:
Unless otherwise provided by law, whenever 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.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.
It is fundamental that a defendant may not be convicted of an offense for which he is not charged. It is also axiomatic that some offenses contain necessarily included lesser offenses and attempts. In re Standard Jury Instructions, 431 So.2d 594 (Fla.1981); Brown v. State, 206 So.2d 377 (Fla.1968); see also State v. Bruns, 429 So.2d 307 (Fla.1983). Hence, a charge of the greater necessarily includes a charge of the lesser. The cases on this point are legion and require no further citation. So well-developed is the case law on this subject that we would reject out-of-hand any suggestion that a defendant could not be convicted of a lesser included offense unless it were charged expressly in the...
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Howard v. State, 84-825
...DCA 1982); State v. Williams, 358 So.2d 1094 (Fla. 1st DCA 1978). As to the enhancement to a first degree felony see Miller v. State, 438 So.2d 83 (Fla. 4th DCA 1983); Dion v. State, 409 So.2d 1216 (Fla. 3d DCA 1982); Section 775.087(1), Florida Statutes (1983). As to the additional enhance......
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