Nephew v. State
| Decision Date | 24 May 1991 |
| Docket Number | No. 90-1647,90-1647 |
| Parties | Kennan NEPHEW, Appellant, v. STATE of Florida, Appellee. 580 So.2d 305, 16 Fla. L. Week. D1421 |
| Court | Florida District Court of Appeals |
Thomas R. Mott, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.
Kennan Nephew has appealed from his conviction and sentence for attempted first-degree murder of a law enforcement officer, grand theft auto, resisting arrest with violence while armed with a firearm, and using a firearm in the commission of a felony, to wit: the attempted first-degree murder. We affirm.
Nephew was charged by information with the foregoing offenses following an incident wherein he fired four shots at an officer who had stopped him for a traffic offense. He was tried by jury and convicted. Section 784.07(3), Florida Statutes (Supp.1988), provides that:
Notwithstanding the provisions of any other section, any person who is convicted of attempted murder of a law enforcement officer engaged in the lawful performance of his duty or who is convicted of attempted murder of a law enforcement officer when the motivation for such attempt was related, all or in part, to the lawful duties of the officer, shall be guilty of a life felony, punishable as provided in s. 775.0825.
Section 775.0825 goes on to provide that "any person convicted of attempted murder of a law enforcement officer as provided in s. 784.07(3) shall be required to serve no less than 25 years before becoming eligible for parole." Accordingly, Nephew was sentenced to 25 years for the attempted first-degree murder conviction, and to various lesser terms on the other charges.
Nephew raises two issues on appeal. The first, that conviction and sentencing for both attempted first-degree murder and possession of a firearm in the commission of a felony constitutes double jeopardy, is without merit. See Lentz v. State, 567 So.2d 997, 998 (Fla. 1st DCA 1990) (). Nephew also argues that section 784.07(3), under which he was convicted of attempted first-degree murder of a law enforcement officer, is unconstitutionally vague in that it does not specify the degrees of attempted murder to which the mandatory term set forth in section 775.0825 will apply.
We affirm, in that we do not find the challenged provision "so vague that men of common intelligence must guess at its meaning." State v. Hagan, 387 So.2d 943, 945 (Fla.1980). While the term "murder" is not defined in the body of the statute, in such cases resort may properly be had to related statutory provisions which define the term. Hagan at 945. Here, the definition of "murder" may be found in sections 782.04(1)--(4), Florida Statutes. That section 784.07(3) does not limit its application to one particular degree of attempted murder does not render the statute "vague;" it simply means that conviction of attempted murder of a law enforcement officer, of whatever degree, will be treated as a life felony and...
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State v. Fuchs, SC96766.
...De La Llana, 693 So.2d 1075, 1078 (Fla. 2d DCA 1997); State v. Campbell, 664 So.2d 1085, 1086 (Fla. 5th DCA 1995); Nephew v. State, 580 So.2d 305, 306 (Fla. 1st DCA 1991). In Hagan, we found that a statute which penalized "trawling operations" that utilized more than one "trawl net" within ......
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State v. DuFresne
...De La Llana, 693 So.2d 1075, 1078 (Fla. 2d DCA 1997); State v. Campbell, 664 So.2d 1085, 1086 (Fla. 5th DCA 1995); Nephew v. State, 580 So.2d 305, 306 (Fla. 1st DCA 1991). In Hagan, we found that a statute which penalized "trawling operations" that utilized more than one "trawl net" within ......
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Isaac v. State, 92-2173
...Appellant renews those arguments here. We have previously addressed the first part of appellant's vagueness argument in Nephew v. State, 580 So.2d 305 (Fla. 1st DCA 1991), cause dismissed, 593 So.2d 1052 (Fla.1992), holding that the statute is not unconstitutionally vague for that reason. S......
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Carpentier v. State
...refers to all degrees of murder. This court has recently had occasion to consider such contention and rejected same. Nephew v. State, 580 So.2d 305 (Fla. 1st DCA 1991). There is nothing vague about the term "murder" in the subject statute. The term is, of course, defined elsewhere in the Fl......