Walker v. State, 580 So. 2d 281

Richard L. Jorandby, Public Defender and Tania Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, West Palm Beach, for appellee.

PER CURIAM.

We affirm appellant‘s conviction for second degree murder with a firearm. Walker was sentenced as a habitual violent offender under section 775.084(4)(b)1, Florida Statutes (1989), to life without eligibility for release for 15 years. We reverse that enhancement.

As the First District did in Johnson v. State, 568 So.2d 519 (Fla. 1st DCA 1990), we conclude that his second degree murder was already enhanced to a life felony under section 775.087(1)(a) for use of a firearm and thus could not be additionally enhanced under section 775.084(4)(b)1 because it was no longer a first degree felony. Under the plain language of the statute, only first degree felonies — not those which are already made life felonies — can be enhanced under section 775.084(4)(b)1. Appellant‘s third issue on appeal is now moot by this disposition.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, GUNTHER and FARMER, JJ., concur.

Case Details

Case Name: Walker v. State

Court Name: District Court of Appeal of Florida

Date Published: May 15, 1991

Citations: 580 So. 2d 281; 1991 WL 76519; 90-1919

Docket Number: 90-1919

Court Abbreviation: Fla. Dist. Ct. App.