Appellant was convicted of possession of a firearm by a convicted felon. He says he should not be assessed firearm points for sentencing, presumably because the possession of the weapon is inherent in the charge and to assess additional points is unjust. Interestingly, appellant was given the mercy of a downward departure sentence which nearly renders his point moot. However, because he will be on probation, and may violate it, he could become subject to an enhancement on account of the firearm possession. Given his demonstrated attitude, it is perhaps true the judge would sentence heavily if he violates the terms of his probation, so the point is not moot.
The court has ruled on the point appealed in Gardner v. State, 661 So.2d 1274 (Fla. 5th DCA 1995) and State v. Scott, 692 So.2d 234 (Fla. 5th DCA 1997). The Second District Court of Appeal ruled similarly in White v. State, 689 So.2d 371 (Fla. 2d DCA 1997). The Fourth District Court of Appeal ruled differently in Galloway v. State, 680 So.2d 616 (Fla. 4th DCA 1996) and the issue is now in our supreme court, so say the parties here, in Scott. We certify the conflict.
AFFIRMED.