Streeter v. State, No. 81-1148

CourtCourt of Appeal of Florida (US)
Writing for the CourtDANIEL S. PEARSON
Citation416 So.2d 1203
PartiesMurrell STREETER, Appellant, v. The STATE of Florida, Appellee.
Decision Date13 July 1982
Docket NumberNo. 81-1148

Page 1203

416 So.2d 1203
Murrell STREETER, Appellant,
v.
The STATE of Florida, Appellee.
No. 81-1148.
District Court of Appeal of Florida,
Third District.
July 13, 1982.

Page 1204

Bennett H. Brummer, Public Defender and Roy T. Gelber, Special Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.

Page 1205

DANIEL S. PEARSON, Judge.

Streeter, charged in Counts I and II with second-degree murder and attempted second-degree murder, was convicted on Count I of third-degree murder, on Count II of attempted third-degree murder, and on Counts III and IV of unlawfully and feloniously possessing a weapon during the commission of the felonies charged in Counts I and II. None of the alternative verdict forms provided to the jury on Counts I and II called for a response as to whether the crimes charged, or any lesser offenses, were committed with a weapon. The jury was, however, instructed that "[t]he punishment provided by law for each individual crime charged in Counts I and II is greater if ... the Defendant, during the commission of the crime ... attempts to use any weapons ..." and, more significantly, "should you find the Defendant guilty of the applicable crime it would be necessary for you to find on your verdict whether or not it has been proven beyond a reasonable doubt that the Defendant during the commission of the crime ... did ... attempt to use any weapon ...." The trial court obviously intended that the jury would itself write in the additional finding on the forms provided. 1 The verdicts on Counts I and II did not indicate one way or the other whether during the commission of these felonies the defendant carried, displayed, used, threatened or attempted to use a weapon. Notwithstanding the absence of such a finding in these verdicts, the trial court, pursuant to Section 775.087, Florida Statutes (1979), respectively reclassified the convictions on Counts I and II to felonies of the first and second degrees and sentenced the defendant to concurrent sentences of thirty and fifteen years on these counts. 2

Streeter's sole contentions on appeal are that the reclassification provisions of Section 775.087 are inapplicable because the use of a weapon is an essential element of the offenses of third-degree and attempted third-degree murder; and, the constitutional counterpart, that where the use of a weapon is an essential element of the crime, an enhanced sentence arising from its use constitutes constitutionally prohibited double punishment for the same act. We reject both contentions. See Pedrera v. State, 401 So.2d 823 (Fla. 3d DCA 1981) (use of a firearm is not an essential element of third-degree murder as statutorily defined); State v. Hegstrom, 401 So.2d 1343 (Fla.1981) (double jeopardy provision of the Fifth Amendment presents no substantive limitation on legislature's power to prescribe multiple punishments).

Our rejection of these contentions does not, however, end our labor, since if the sentences imposed on Counts I and II are illegal because in excess of the maximum allowed, there exists fundamental error, Ex parte Bosso, 41 So.2d 322...

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49 practice notes
  • Connolly v. State, No. 3D09–280.
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...in committing both crimes. This is exactly what is required for reclassification ... under section 775.087(1) ”); Streeter v. State, 416 So.2d 1203, 1206 (Fla. 3d DCA 1982).In this multiple defendant scenario, the jury verdict is fundamentally flawed because, 1) the indictment did not speci......
  • Carroll v. State, No. 82-2565
    • United States
    • Court of Appeal of Florida (US)
    • December 10, 1985
    ...to a conviction of robbery with "a firearm or other deadly weapon." Clemon v. State, 473 So.2d 271 (Fla.3d DCA 1985); Streeter v. State, 416 So.2d 1203 (Fla.3d DCA 1982). The jury finding of an "armed robbery" obviously refers to the defendant's taking of the victim's pocketknife. See State......
  • Pleasant Grove City v. Terry, No. 20160092
    • United States
    • Supreme Court of Utah
    • October 29, 2020
    ...of the predicate offense. We cannot and should not review them separately in such circumstances. See, e.g. , Streeter v. State , 416 So. 2d 1203, 1206 n.3 (Fla. Dist. Ct. App. 1982) (noting an "exception to the proposition that separate counts must be viewed independently" when "what the ju......
  • Connolly v. State, No. 3D09-280
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...committing both crimes.Page 98This is exactly what is required for reclassification . . . under section 775.087(1)"); Streeter v. State, 416 So. 2d 1203, 1206 (Fla. 3d DCA 1982). In this multiple defendant scenario, the jury verdict is fundamentally flawed because, 1) the indictment did not......
  • Request a trial to view additional results
49 cases
  • Connolly v. State, No. 3D09–280.
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...in committing both crimes. This is exactly what is required for reclassification ... under section 775.087(1) ”); Streeter v. State, 416 So.2d 1203, 1206 (Fla. 3d DCA 1982).In this multiple defendant scenario, the jury verdict is fundamentally flawed because, 1) the indictment did not speci......
  • Carroll v. State, No. 82-2565
    • United States
    • Court of Appeal of Florida (US)
    • December 10, 1985
    ...to a conviction of robbery with "a firearm or other deadly weapon." Clemon v. State, 473 So.2d 271 (Fla.3d DCA 1985); Streeter v. State, 416 So.2d 1203 (Fla.3d DCA 1982). The jury finding of an "armed robbery" obviously refers to the defendant's taking of the victim's pocketknife. See State......
  • Pleasant Grove City v. Terry, No. 20160092
    • United States
    • Supreme Court of Utah
    • October 29, 2020
    ...of the predicate offense. We cannot and should not review them separately in such circumstances. See, e.g. , Streeter v. State , 416 So. 2d 1203, 1206 n.3 (Fla. Dist. Ct. App. 1982) (noting an "exception to the proposition that separate counts must be viewed independently" when "what the ju......
  • Connolly v. State, No. 3D09-280
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...committing both crimes.Page 98This is exactly what is required for reclassification . . . under section 775.087(1)"); Streeter v. State, 416 So. 2d 1203, 1206 (Fla. 3d DCA 1982). In this multiple defendant scenario, the jury verdict is fundamentally flawed because, 1) the indictment did not......
  • Request a trial to view additional results

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