Cooper v. StateCooper v. State
No appearance for appellee.
OPINION
BARFIELD, Judge.
Timothy Ted Cooper appeals his convictions for two counts of attempted second degree murder. Eight of the ten issues raised by Cooper are without merit. The remaining two issues concern the imposition of consecutive mandatory three year minimum sentences, which we reverse, and the reclassification of attempted second degree murder with a firearm from a second
In this case the imposition of two consecutive three year minimum sentences under
The defendant was charged with two counts of attempted first degree murder with a firearm, each a life felony by reclassification under
All necessarily included offenses and lesser included offenses are “charged” within the meaning of
We are aware of the decisions in Miller v. State, 438 So.2d 83 (Fla. 4th DCA 1983) and Hayden v. State, 450 So.2d 1242 (Fla. 3d DCA 1984), the results of which are consistent with this opinion, but we are critical of the commingling of the terms “reclassification” and “enhancement“. It may be of some benefit for the court to distinguish between “enhancement” of penalty laws and “reclassification” of offense laws. Admittedly, in some instances such a distinction may be without a difference in its practical effect, but the legislature has chosen to make a distinction. Enhancement is commonly associated with the province of the judge in sentencing, as in the case of habitual offenders,
This court considered the decision in Miller v. State, supra, in its opinion in Smith v. State, supra, and we continue to recognize the importance of the issue which led to prior conflict with our colleagues and our present reversal of our earlier rulings. We certify to the Florida Supreme Court the following question as one of great public importance pursuant to Fla.App.R. 9.030(a)(2)(A)(v):
Do the reclassification provisions of Section 775.087(1), Florida Statutes, apply where the defendant is not convicted of the offense expressly charged in the information or indictment but, instead, is convicted of a lesser included offense?
REVERSED in part and AFFIRMED in part.
BOOTH, SHIVERS, WENTWORTH, JOANOS, THOMPSON, WIGGINTON and NIMMONS, JJ., concur.
MILLS, J., specially concurs with opinion.
ERVIN, SMITH and ZEHMER, JJ., concur with Mills’ opinion.
Although I agree with the results reached in Cooper, I do not agree that enbanc consideration was necessary. In my judgment, the en banc consideration of this case was unwarranted and was an unnecessary waste of judicial time.
Neither party sought review of this Court‘s decision in the Carroll case. The defendant sought review of the Fourth District Court of Appeal‘s decision in the Miller case and the Supreme Court will hear oral argument on 7 September. This court adhered to Carroll in its Smith decision but certified conflict with Miller and certified the following question as one of great public importance:
DO THE RECLASSIFICATION PROVISIONS OF SECTION 775.087(1), FLORIDA STATUTES, APPLY WHERE THE DEFENDANT IS NOT CONVICTED OF THE OFFENSE EXPRESSLY CHARGED IN THE INFORMATION OR INDICTMENT BUT, INSTEAD, IS CONVICTED OF A LESSER INCLUDED OFFENSE?
The Supreme Court accepted jurisdiction.
This Court took proper action in the Smith case and the Supreme Court now has jurisdiction to resolve the conflict between Carroll and Smith and Miller. It is the appropriate jurisdiction to resolve this conflict.
It was a waste of judicial time for this Court to en banc Cooper when it had already taken appropriate action in Smith.
The ultimate decision in Carroll was based on the defendant‘s motion for rehearing. The State did not favor the Court with a response to the motion for rehearing. Under the circumstances, the result reached in Carroll was a reasonable construction of
Having had the benefit of arguments by Cooper, the State and Judges of this Court, I now agree that the Cooper construction of