State v. Rodriguez, 90-1907

• Decision Date: 19 March 1991
• Docket Number: No. 90-1907,90-1907
• Citation: 582 So.2d 1189,16 Fla. L. Weekly 1100
• Parties: 16 Fla. L. Weekly 1100, 16 Fla. L. Weekly 750, 16 Fla. L. Weekly 891 The STATE of Florida, Appellant, v. Anibal RODRIGUEZ, Appellee.
• Court: Florida District Court of Appeals

Page 1189

582 So.2d 1189

16 Fla. L. Weekly 1100, 16 Fla. L. Weekly 750,

16 Fla. L. Weekly 891

The STATE of Florida, Appellant, v. Anibal RODRIGUEZ, Appellee.

No. 90-1907.

District Court of Appeal of Florida,

Third District.

March 19, 1991.

As Corrected April 2, 1991.

On Motion for Rehearing and

Certification April 23, 1991.

Robert A. Butterworth, Atty. Gen. and Jorge Espinosa, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender and Michel Ociacovski Weisz, Sp. Asst. Public Defender, for appellee.

Before HUBBART, COPE and GODERICH, JJ.

PER CURIAM.

The State appeals an order granting relief under Rule 3.850, Florida Rules of Criminal Procedure. We affirm.

Defendant was convicted of attempted first degree murder. The evidence showed that when police attempted to pull over defendant's vehicle, defendant fled at high speed. During the chase, the passenger picked up a rifle and began shooting at the pursuing officers. ¹ Upon conviction, defendant's sentence was enhanced pursuant to subsection 775.087(1), Florida Statutes (1983), which provided for enhancement of the degree of felony when "[t]he defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm...." The defendant was convicted of two counts of attempted first degree murder, and sentenced pursuant to the statute just cited. By motion for post-conviction relief he asserted that the enhancement under the statute was illegal because the codefendant, not the defendant, possessed the firearm during the attempted murders. The trial court agreed and we affirm.

This court has previously ruled that "the enhancement provisions of section 775.087(1), Florida Statutes (1977), ... require that the defendant personally possess the weapon during the commission of the crime involved." Postell v. State, 383 So.2d 1159, 1162 (Fla. 3d DCA 1980). The trial court's ruling correctly followed Postell; Williagham v. State, 541 So.2d 1240 (Fla. 2d DCA), review denied, 548 So.2d 663 (Fla.1989); and Ngai v. State, 556 So.2d 1130, 1131 (Fla. 3d DCA 1989).

The State asserts that if we sustain the trial court's ruling this decision will conflict with Menendez v. State, 521 So.2d 210 (Fla. 1st DCA 1988). We do not agree. This case is distinguishable from Menendez, in which the defendant was convicted of trafficking in cocaine while in possession of a firearm. In that case the defendant constructively possessed a firearm while the elements of the crime of trafficking were committed. Id. at 212.

In this case the defendant, Rodriguez, was convicted of attempted first degree murder. The State argues that, like the defendant in Menendez, Rodriguez constructively possessed the gun during the commission of the attempted murder. However, while the crime of attempted murder was being committed in the present case, Rodriguez' codefendant was in exclusive possession of the gun. This case is factually similar to Willingham v. State, in which the defendant's codefendant had possession of a gun during a drug transaction. 541 So.2d at 1241. The court held that the defendant could not be reclassified to a higher felony when his codefendant had exclusive possession of a firearm during the commission of the crime for which the defendant was charged. ² Id. at 1241-42.

We therefore affirm the trial court order.

ON MOTION FOR REHEARING AND CERTIFICATION

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