DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTONIO L. HARRIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-4917
[January 6, 2016]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Lisa M. Porter, Judge;
L.T. Case No. 96-14720CF10B.
Antonio L. Harris, Bristol, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
This is an appeal of an order denying a motion to correct illegal sentence
pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant’s
motion presented three points. We affirm without discussion points one
and three, and reverse and remand for further review on point two wherein
he argues that his life sentence for Count I is illegal because of the lack of
jury finding that he actually possessed a firearm.
Appellant was charged in Count I with attempted first degree murder
and in Count II with robbery with a deadly weapon. Count I alleged that
appellant and a co-defendant attempted to kill the victim by shooting him
with a firearm, and that appellant possessed the firearm, though both
intended to commit the murder. Count II alleged that the two defendants
committed the armed robbery and the firearm was “in the possession” of
them both.
The jury found appellant guilty of the lesser included offense of
attempted second degree murder with a weapon. It also found him guilty
of armed robbery, and “in course thereof,” that he carried a firearm, as
charged. The trial court sentenced appellant as a violent career criminal
to concurrent life terms with a fifteen-year mandatory minimum for each.
This court affirmed his conviction, but remanded for resentencing
pursuant to State v. Thompson, 750 So. 2d 643 (Fla. 1999). See Harris v.
State, 755 So. 2d 766 (Fla. 4th DCA 2000).
On remand, the trial court resentenced appellant on Count I as a
habitual violent felony offender to life with a fifteen-year mandatory
minimum. Appellant was sentenced to life on count II as well.1 This
appeal concerns appellant’s claim that his life sentence on Count I is
illegal.
The attempted second degree murder charge was enhanced from a
second degree felony to a first degree felony based on the use of a deadly
weapon. § 775.087(1)(b), Fla. Stat. (1995); see also §§ 782.04(2),
777.04(4)(c). For a first degree felony, the trial court can sentence a
habitual violent felony offender to life in prison and the offender is not
eligible for release for fifteen years. § 775.084(4)(b)1., Fla. Stat. (1995).
Florida Statute section 775.087(1) provides as follows:
(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: ....
(b) In the case of a felony of the second degree, to a felony of
the first degree.
Appellant argues that the jury did not make the required finding to
support a weapon or firearm reclassification. § 775.087(1), Fla. Stat.
(1995). Specifically, the verdict did not find that appellant “carried,
displayed, used, threatened, or attempted to use” the weapon as required
by the language of the statute. Appellant points out that when finding him
guilty of the lesser included offense, the jury rejected the charged offense
of attempted first degree murder, which provided that “in the course
thereof the Defendant carried a Firearm.”
1Armed robbery with a firearm is a first degree felony punishable by life. §
812.13(2)(a), Fla. Stat. (1995).
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The record furnished does not support the position the state argued
below, that appellant raised this claim in a previous motion. See State v.
McBride, 848 So. 2d 287, 290-91 (Fla. 2003). Considering the merits,
section 775.087(1) does not permit vicarious enhancement. See State v.
Rodriguez, 602 So. 2d 1270, 1271 (Fla. 1992). The record before this court
is insufficient to permit substantive review of the claim. Id. at 1271; see
also Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015); Alusma v. State,
939 So. 2d 1081 (Fla. 4th DCA 2006). Also, we decline to accept the jury’s
firearm finding associated with Count II to satisfy the required finding for
Count I. See generally Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA
1982). On remand, the trial court shall consider whether the
reclassification on Count I was based on appellant’s actual possession of
a weapon.
For the stated reasons, we affirm in part, reverse in part, and remand
for further proceedings.
CIKLIN, C.J., GROSS and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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