Summary
In Johnson v. State, 568 So.2d 519 (Fla. 1st DCA 1990), and Walker v. State, 580 So.2d 281 (Fla. 4th DCA 1991), the defendants were convicted of second degree murder, pursuant to Section 784.04(2), Florida Statutes (1989), which was reclassified to a life felony, pursuant to Section 775.087, Florida Statutes (1989), because of the use of a firearm during the commission of each murder.
Summary of this case from Lamont v. StateOpinion
No. 89-2128.
October 22, 1990. Rehearing Denied November 28, 1990.
Appeal from the Circuit Court, Duval County, Hudson Olliff, J.
R. Baker King, Jacksonville, for appellant.
Robert A. Butterworth, Atty. Gen., William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellee.
Johnson appeals his judgment and sentence for second degree murder and possession of a firearm on several grounds, only one of which we find to have merit.
The defendant was convicted of second degree murder pursuant to section 782.04(2), Florida Statutes (1989), which constitutes a first degree felony. This offense was reclassified to a life felony under section 775.087, Florida Statutes (1989), because the defendant used a firearm during commission of the felony. Before sentencing, the court found the defendant to be a habitual violent felony offender pursuant to section 775.084, Florida Statutes. The trial judge mistakenly believed that section 775.084(4)(b)(1), Florida Statutes (1989), allowed him to sentence the defendant to life in prison without eligibility for release for 15 years. However, there is no provision under the habitual violent felony offender statute for enhancing the sentence of a defendant convicted of a life felony. Therefore, it was error for the trial judge to sentence the defendant pursuant to this statute.
Accordingly we must reverse and remand to the trial court for resentencing.
WIGGINTON and MINER, JJ., concur.