State v. Brown, 66140

Decision Date26 September 1985
Docket NumberNo. 66140,66140
Citation476 So.2d 660,10 Fla. L. Weekly 531
Parties10 Fla. L. Weekly 531 STATE of Florida, Petitioner, v. Samuel L. BROWN, Respondent.
CourtFlorida Supreme Court

Jim Smith, Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for petitioner.

James B. Gibson, Public Defender and Daniel J. Schafer, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondent.

EHRLICH, Justice.

This case is before us for review of Brown v. State, 458 So.2d 313 (Fla. 5th DCA 1984). There is apparent conflict with State v. Gibson, 452 So.2d 553 (Fla.1984), which is the reason we originally took jurisdiction. Art. V, § 3(b)(3), Fla. Const. Upon further analysis, as discussed infra, we conclude that the apparent conflict arises in statutory construction, and when the proper construction is made in this case, the appearance of conflict is resolved. We therefore dismiss the petition for review.

Respondent was convicted on two counts of armed robbery. § 812.13(2)(a), Fla.Stat. (1983). In sentencing Brown, the trial court enhanced the sentences from first-degree felonies to life felonies, pursuant to section 775.087(1)(a). On appeal, the district court held that the enhancement was improper on the rationale that armed robbery was already an enhancement of robbery, and double enhancement was impermissible.

In Gibson, we held that armed robbery merely required "carrying" a firearm or other deadly weapon, and that therefore there was no bar to a separate sentence and conviction for "use" or "display" of a firearm during commission of a felony, section 790.07(2), Florida Statutes (1977). Brown appears to conflict with Gibson because the Brown court refused to construe the statutes in question to give effect to the distinction between "carrying" in the armed robbery statute and "using" in the sentence enhancement statute.

The sentence enhancement statute reads, in pertinent part:

(1) 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.

§ 775.087, Fla.Stat. (1983).

Respondent correctly argues that if the Gibson distinction is applied to the instant statutes, armed robbery and sentence enhancement, all armed robberies are enhanced to life felonies. While it may be possible that the legislature could do this within the strictures of the state and federal constitutions, we are inclined to construe the statutes differently.

We note that, in the enhancement statute, the exception clause exempts crimes where use of a weapon is an essential element. The statute thus creates a class of all other crimes and enhances sentence when a weapon is carried, displayed, used, threatened or attempted to be used. We find that the word "use" in the exception clause must be read in light of the enumerated "uses" in the subsequent phrase. Why would the legislature enhance all crimes where carrying, display,...

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12 cases
  • State v. Barnum
    • United States
    • Florida Supreme Court
    • September 22, 2005
    ...statutes such as the habitual offender statute, `which cut across some or all criminal statutes.'" Id. at 1287 (quoting State v. Brown, 476 So.2d 660, 662 (Fla.1985)). Clearly, in Mills we held that offenses that are reclassified as felonies pursuant to section 784.07 qualify as felony offe......
  • Ramroop v. State
    • United States
    • Florida District Court of Appeals
    • September 4, 2015
    ...enhancement statutes such as the habitual offender statute, “which cut across some or all criminal statutes.”Id. (quoting State v. Brown, 476 So.2d 660, 662 (Fla.1985) ).9 As such, the court went on to find that an offense reclassified as a felony pursuant to section 784.07 could qualify as......
  • Lamb v. Volkswagenwerk Aktiengesellschaft
    • United States
    • U.S. District Court — Southern District of Florida
    • March 25, 1986
    ... ... 631 F. Supp. 1145          Arno Kutner, Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson, Miami, Fla., Charles R. Stack, High, Stack, Lazenby, Bender, Palahach & Lacasa, Coral ... of whether Pullum is to be afforded retroactive application, this Court must be guided by state law as interpreted by the state's highest court. Bailey v. Southern Pacific Transport Co., 613 ... ...
  • Clarington v. State
    • United States
    • Florida District Court of Appeals
    • May 10, 1994
    ...sentence, it may not reclassify, by degree, defendant's offense pursuant to Section 775.087(1), Florida Statutes (1989). See State v. Brown, 476 So.2d 660 (Fla.1985).8 Although Clarington did not raise this issue in his brief this court may, sua sponte, remedy fundamental error which is app......
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