Benny Lee DOUGLAS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
Jаmes Marion Moorman, Public Defender, and W.H. Pasch, Asst. Public Defender, Bartow, for appellant.
*705 Robert A. Butterworth, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
PARKER, Judge.
Douglas alleges the triаl court erred in reclassifying his conviction for attempted first-degree felony murder from a felоny of the first degree to a life felony. We agree and remand for correction of the judgment.
Douglas was charged in a two-count information with attempted first-degree murder, a first-degree fеlony, and armed robbery. In addition to listing the statutes establishing the substantive offense under count I, the informаtion listed Florida Statute Section 775.087.[1] Following a jury trial, Douglas was convicted of attempted first-degree felony murder, a lesser included offense to that charged under count I, as contained in the trial court's instructions to the jury. The jury further found Douglas guilty of armed robbery as charged under count II. Pursuant to section 775.087(1)(a), Florida Statutes (1985), the trial court reclassified Douglas' first-degree convictiоn under count I to a life felony.
The reclassification statute requires a finding that during the commission of the felony sought to be reclassified, Douglas carried, displayed, used, threatened or attempted to use any weapon or firearm. § 775.087(1), Fla. Stat. (1985). In interpreting that statute, the supreme cоurt has held that the jury and not the trial court must make the factual determination that a weapon was used during the commission of the offense sought to be reclassified. State v. Overfelt,
Where, as here, the offense of attempted first-degree felony murder does not necessarily involve a weapon, the approved method for obtaining such a finding from the jury (i.e., that a weapon was used) is by including that precise question on the special verdict form for thаt offense. Streeter v. State,
The record in this case reflects thаt the special verdict form used for the charge of attempted first-degree murder (count I) dоes not contain an interrogatory inquiring as to the use of a weapon during the occurrence of the offense as charged or during the commission of the lesser included offense of аttempted first-degree felony murder. Nor from the record before us does the jury appear to have been orally instructed by the trial court to make such a determination. By contrast, thе verdict form submitted to the jury on the armed robbery charge (count II) did require the jury to make such a finding: "and we further find in the course of committing Robbery the Defendant"; this phrase was followed by three boxes providing the jury with the choices of "carried a deadly weapon (the jury's selection)," "cаrried a weapon" and "carried no weapon."
The state's argument that the finding by the jury that a wеapon was used under count II can be used to reclassify Douglas' offense under count I was rеjected by Streeter. See also Vause v. State,
Wе, therefore, remand the case to the trial court to correct the judgment to refleсt that Douglas was convicted of a first-degree felony, not a life felony, under count I. We notе that Douglas' sentence is not affected by this conclusion, since even without the additional рoints for a life felony, his presumptive sentence under the sentencing guidelines would permit a 22-year prison term, which is the sentence he received. Nonetheless, on remand, Douglas' scоresheet should also be corrected so as to omit the life felony points (29), since the additional points adversely affect Douglas' prior record for purposes of future sentеncing.
Remanded to the trial court for correction of the judgment and sentencing guidelines scоresheet. The defendant is not required to be present for this purpose.
HALL, A.C.J., and THREADGILL, J., concur.
NOTES
Notes
[1] 775.087 Possession or use оf weapon; aggravated battery; felony reclassification; minimum sentence.
(1) Unless otherwisе 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 felоny for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.