568 So. 2d 468 | Fla. Dist. Ct. App. | 1990
Concurrence Opinion
concurring specially.
I write only to note that while in the context of Hardee v. State, 534 So.2d 706 (Fla.1988), the supreme court appears to equate the word “gun” with “firearm,” the legislature has determined that in order for the minimum mandatory provisions of section 775.087(2)(a), Florida Statutes (1989)
. Section 775.087(2)(a) provides that a person who is convicted of certain specified crimes and who "had in his possession a ‘firearm,’ as defined in s. 790.001(6), or 'destructive device,’ as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years.... ”
. Section 790.001(6) states:
"Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm” does not include an antique firearm unless the antique firearm is used in the commission of a riot; the inciting or encouraging of a riot; or the commission of a murder, an armed robbery, an aggravated assault, an ag*470 gravated battery, a burglary, an aircraft piracy, a kidnapping, or a sexual battery.
Lead Opinion
Appellant seeks reversal of his conviction for attempted murder based on the trial court’s refusal to hold a Richardson hearing to evaluate the state’s failure to disclose photographs of the crime scene prior to trial. The record does indicate that the failure to disclose was probably inadvertent; however due to the trial court’s refusal to conduct a Richardson hearing, it is impossible to discern whether the defendant was in any way prejudiced. Accordingly, this conviction must be reversed. Smith v. State, 500 So.2d 125 (Fla.1986).
We also note that appellant was sentenced to a three year minimum mandatory sentence based upon use of a firearm although the information only charges that appellant tried to shoot the victim with “a gun”. The jury likewise found appellant guilty of attempted first degree murder with a gun. A gun is not necessarily a “firearm”. See Ridley v. State, 441 So.2d 188 (Fla. 5th DCA 1983). A “firearm” sentence based on use of a “gun” is improper. See State v. Overfelt, 457 So.2d 1385 (Fla.1984). Cf. State v. Jones, 536 So.2d 1161 (Fla. 5th DCA 1988); but cf. Hardee v. State, 534 So.2d 706 (Fla.1988).
REVERSED.
