White v. State
| Decision Date | 12 June 1998 |
| Docket Number | No. 89998,89998 |
| Citation | 714 So.2d 440 |
| Parties | 23 Fla. L. Weekly S311 Anthony D. WHITE, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and Austin H. Maslanik, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Petitioner.
Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Respondent.
We have for review the decision in White v. State, 689 So.2d 371 (Fla. 2d DCA 1997), which certified conflict with the decision in Galloway v. State, 680 So.2d 616 (Fla. 4th DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Petitioner Anthony D. White was arrested and later charged and convicted of two offenses: carrying a concealed firearm in violation of section 790.01, Florida Statutes (1993) At sentencing, the trial court added eighteen points to White's sentencing worksheet score under the provisions of rule 3.702(d)(12) of the Florida Rules of Criminal Procedure requiring the additional points if a defendant possesses a firearm "during the commission" of the underlying crime. The sentencing worksheet reflects that without the addition of the eighteen points, White would have received a sentencing score that left incarceration to the discretion of the court. However, after adding the additional points for possession of a firearm, White's sentencing score made incarceration in state prison mandatory. See § 921.0014, Fla. Stat. (1993) (Worksheet key).
and possession of a firearm by a convicted felon, in violation of section 790.23, Florida Statutes (1993). Both offenses were based upon a single .25 caliber handgun being found in White's pocket on December 16, 1994.
On appeal, the district court affirmed the prison sentence and the trial court's addition of the additional points for firearm possession, but certified conflict with the Fourth District's decision in Galloway v. State, 680 So.2d 616 (Fla. 4th DCA 1996).
White raises two issues on review: (1) whether the trial court erred in assessing eighteen points on the sentencing guideline score sheet for possession of a firearm where possession was one of the essential elements of the crime for which White was being sentenced, and (2) whether the trial court erred by not granting White's motion to suppress. White's second issue is beyond the scope of the certified conflict, and we decline to address the merits of that claim.
At the time of White's arrest, rule 3.702(d)(12) of the Florida Rules of Criminal Procedure provided:
Possession of a firearm, destructive device, semiautomatic weapon, or a machine gun during the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points shall be assessed where the defendant is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) [ 1] while having in his or her possession a firearm as defined in subsection 790.001(6).... Twenty-five sentence points shall be assessed where the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) while having in his or her possession a semiautomatic weapon as defined in 775.087(2)....
Fla. R.Crim. P. 3.702(d)(12). 2 White argues that the trial court erred in adding eighteen additional sentencing points for possession of a firearm because both of his underlying offenses already contemplate possession of a firearm and provide specific punishment for In Galloway the defendant was convicted of carrying a concealed weapon and possession of a firearm by a convicted felon. The trial court added eighteen additional points for the possession of a firearm to his sentencing scoresheet. On appeal, the Fourth District Court of Appeal held that rule 3.702(d)(12) does not apply to convictions of carrying a concealed weapon and possession of a firearm by a convicted felon where such offenses are "unrelated to the commission of any additional substantive offense." 680 So.2d at 617.
the firearm possession, and rule 3.702(d)(12) was not intended to mandate an enhancement of punishment for the firearm possession in such a situation. On the other hand, the State contends that since White's firearm crimes are not specifically named and excluded from operation of the rule, the enhancement should be applied.
The Fourth District placed particular importance on the language of rule 3.702(d)(12) that expressly provided assessment of the eighteen points when a defendant was convicted of a felony "while having in his or her possession a firearm." Id. In other words, the court construed the "while" language to mean that the firearm possession must occur during the commission of a separate crime that does not itself necessarily involve possession of a firearm as a legal element thereof. See also State v. Walton, 693 So.2d 135, 136-37 (Fla. 4th DCA 1997) (); Aguilar v. State, 700 So.2d 58, 59-60 (Fla. 4th DCA 1997) (). 3
In contrast, both the Second and Fifth District Courts of Appeal hold that additional sentencing points are proper where a defendant is convicted of carrying a concealed weapon or possession of a firearm by a convicted felon even though carrying or possessing a firearm is an essential element of the underlying crime. These cases are predicated upon the fact that rule 3.702(d)(12) does not explicitly exempt firearm possession cases from its enhancement provisions. See, e.g., State v. Shiver, 700 So.2d 780, 781 (Fla. 2d DCA 1997); State v. Vela, 700 So.2d 779, 780 (Fla. 2d DCA 1997); State v. King, 700 So.2d 781, 782 (Fla. 2d DCA 1997); Mobley v. State, 699 So.2d 328, 329 (Fla. 2d DCA 1997); Smith v. State, 683 So.2d 577, 579 (Fla. 5th DCA 1996), review dismissed, 691 So.2d 1081 (Fla.1997); Gardner v. State, 661 So.2d 1274, 1275 (Fla. 5th DCA 1995); cf. State v. Hanks, 700 So.2d 779, 779 (Fla. 2d DCA 1997) (); State v. Davidson, 666 So.2d 941, 942 (Fla. 2d DCA 1995) ().
Both this Court and the legislature have expressly mandated that penal statutes must be strictly construed in favor of an accused. § 775.021(1), Fla. Stat. (1997); Trotter v. State, 576 So.2d 691 (Fla.1990). In doing so here we conclude that the Fourth District in Galloway was correct in its analysis that the enhancement provision was intended to apply only to substantive crimes not including firearm possession as an essential element.
We begin our analysis by observing that it is apparent that rule 3.702(d)(12) was intended to deter the use of weapons during the commission of crimes by distinguishing between crimes committed with or without firearm possession, and providing an enhancement to penalties for crimes committed with possession of a firearm. For example, the Senate Staff Analysis on the legislative twin to rule 3.702(d)(12), section 921.0014, Florida Statutes (Supp.1994), notes that under the 1994 sentencing guidelines "[p]oints are assessed against an offender for his current offense as well as for other factors such as ... the possession of a firearm ...." Fla. S. Comm. on Crim. Justice, SB 172, Staff Analysis 1 (April 11, 1995) (on file with comm.) (emphasis added). This statement indicates that the "other factors" contemplated obviously mean factors that do not inhere in the "current offense" for which sentencing points are already separately assessed based on its intrinsic character. 5 In other words, where the possession of a firearm itself is already specifically targeted by the legislature for punishment as an offense, the firearm possession incidental to that offense would not constitute a separate and additional factor to the underlying offense, so as to trigger an additional enhancement for the firearm possession.
This analysis is also consistent with the explicit exclusion of other, more serious offenses, from the...
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