Pearson v. State, No. 90-2148

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM; HUBBART
• Citation: 603 So.2d 676
• Parties: Bennie Lee PEARSON, Appellant, v. The STATE of Florida, Appellee. 603 So.2d 676, 17 Fla. L. Week. D1938
• Docket Number: No. 90-2148
• Decision Date: 18 August 1992

Page 676

603 So.2d 676 Bennie Lee PEARSON, Appellant,
v.
The STATE of Florida, Appellee. No. 90-2148.
603 So.2d 676, 17 Fla. L. Week. D1938 District Court of Appeal of Florida,
Third District. Aug. 18, 1992.

Page 677

Bennett H. Brummer, Public Defender, and Sheryl J. Lowenthal, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.

Before BARKDULL, HUBBART and NESBITT, JJ.

ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of the motion of Bennie Lee Pearson this court's previous opinion is withdrawn and the following opinion is substituted:

The trial court in the instant case adjudicated Bennie Lee Pearson guilty of second-degree murder with a firearm and unlawful possession of a firearm during the commission of a felony. The court found Pearson to be an habitual and violent offender, and imposed a sentence of fifty years in prison with a mandatory minimum of fifteen years without eligibility for parole. We affirm in part and reverse in part and remand for resentencing.

We agree with defendant's argument that because his conviction for second-degree murder with a firearm and his conviction for unlawful possession of a firearm during the commission of a felony arose out of the same act, the doctrine of double jeopardy barred the later conviction. See Cleveland v. State, 587 So.2d 1145 (Fla.1991); Sessions v. State, 597 So.2d 832 (Fla. 3d DCA 1992); Davis v. State, 590 So.2d 496 (Fla. 3d DCA 1991); see also Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988).

Additionally, we conclude no error occurred when the trial judge ordered defendant's sentence enhanced. Based upon

Page 678

our holding in Lamont v. State, 597 So.2d 823 (Fla. 3d DCA 1992), life felonies are subject to enhancement under the habitual offender statute, section 775.084, Florida Statutes (1989). However, reading the habitual offender statute in pari materia with section 775.082(3)(a), we conclude that once the trial court determined defendant should be sentenced to a term of years, forty years was the maximum term of years permitted under the statute. See Ward v. State, 558 So.2d 166 (Fla. 1st DCA 1990); see also Howe v. State, 596 So.2d 1227 (Fla. 2d DCA 1992). Also, the fifteen-year mandatory minimum cannot be imposed because, as stated in Lamont, subsections 775.084(4)(a) and (b) do not apply to life felonies. Lamont, 597 So.2d at 829.

As to the remaining points raised, first, the trial judge properly denied defendant's motion to suppress his statement. Based upon his co-perpetrator's specific identification of the defendant as a...