473 So. 2d 722 | Fla. Dist. Ct. App. | 1985
Appellant was charged with second degree murder. Upon trial by jury he was convicted of the lesser offense of manslaughter.
A number of points on appeal have been asserted. We have assessed them in light
It appears that the trial court enhanced the sentence from a second degree felony to a first degree felony pursuant to Section 775.087, Florida Statutes (1988), which provides that a sentence can be enhanced when the defendant carries, displays, uses, threatens, or attempts to use a firearm in the commission of the offense.
We reverse the sentence and remand with instructions to delete the enhancement and resentence appellant accordingly. Appellant must be present for such resentenc-ing since the trial court has a discretion under the guidelines in sentencing for a second degree felony. We mandate this reversal upon authority of State v. Overfelt, 457 So.2d 1385 (Fla.1984), wherein the Supreme Court of Florida stated:
The district court held, and we agree, “that before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.”
Id. at 1387.
Although the information charged appellant with murder in the second degree by using a handgun, and although the proofs manifestly reflected that the victim was killed by a firearm, the jury verdict which found appellant guilty of the lesser offense of manslaughter made no mention of a firearm. Moreover, the definition of manslaughter does not include reference to a firearm. In other words, a person may commit manslaughter without necessarily using a firearm. And so, we are of the opinion that the requirements of State v. Overfelt, supra, were not met.
We reverse and remand for resentencing in accordance herewith.
Reversed and Remanded.
