PATRICIA HILTON SHIVER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A trial court commits error when it assesses additional sentencing points for carrying or possessing a firearm where the carrying or possession of the firearm is the essential element of the underlying offense.
[1] Under Florida sentencing guidelines, additional points for carrying or possessing a firearm may not be assessed where the carrying or possession of the firearm constitute…
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Join FLexlaw to unlock all legal intelligence“it is error for a trial court to assess additional sentencing points for possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon”
The court stated its holding regarding the impermissibility of adding sentencing points when firearm possession is the essential element of the offense
Shiver was convicted of a firearm offense. The trial court assessed additional sentencing points based on carrying or possessing a firearm under sente…
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PER CURIAM.
We have for review the decision in State v. Shiver, 700 So. 2d 780 (Fla. 2d DCA 1997), which the district certified to be in conflict with the opinion in Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996), concerning the issue of whether additional sentencing points for carrying or possessing a firearm during the commission of a crime may be added to a defendant’s sentencing score where the defendant is convicted of carrying a concealed weapon or possession of a firearm by a convicted felon. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Recently, we resolved this conflict in White v. State, 714 So. 2d 440, 23 Fla. L. Weekly S 311 (Fla.1998), wherein we held that it is error for a trial court to assess additional sentencing points for possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon. In other words, we held that rule 3.702(d)(12) of the Florida Rules of Criminal Procedure and section 921.0014, Florida Statutes (1993), do not contemplate the addition of sentencing points for carrying or possessing a firearm where the carrying or possession of a firearm is the essential element of the underlying offense. In so holding, we approved the Fourth District’s opinion in Galloway.
Therefore, in accordance with our decision in White, we quash the decision below.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN and ANSTEAD, JJ., concur. WELLS, J., dissents with an opinion.
WELLS, Justice,
dissenting.
I dissent for the reasons stated in my dissenting opinions in Asbell v. State, 715 So. 2d 258 (Fla.1998); and White v. State, 714 So. 2d 440, 23 Fla. L. Weekly S311 (Fla. June 12, 1998).
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Slingbaum v. State, 751 So. 2d 89 (Fla. 2d DCA 1999)…appear that the defendant is correct in that the ... sentence had already run.” The State has chosen not to participate in the proceedings in this court. . The revocation process is set in motion when an arrest warrant is issued. See State v. Boyd, 717 So. 2d 524 (Fla.1998). At the time relevant to this case, a warrant was not considered "issued” until it had been signed by the judge and delivered to the executive officer for execution. See id. This has since been changed by the legislature so that a warrant…
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Elvin Otis Morgan v. State, 757 So. 2d 618 (Fla. 2d DCA 2000)…roceeding is set in motion when the arrest warrant is issued; for the purposes of this case, “an arrest warrant is not issued until a judge signs the warrant and the warrant is delivered to the proper executive officer for execution.” State v. Boyd, 717 So. 2d 524, 526 (Fla.1998).1 Here, the trial court did not even sign the arrest warrant until January 8, 1998, three days after Morgan’s original term of community control expired on January 5, 1998. Thus, the revocation process had not been set in motion befo…
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Marcine Howard v. State, 883 So. 2d 879 (Fla. 4th DCA 2004)…ndant’s probation was revoked); Nagel v. State, 758 So. 2d 1206, 1208 (Fla. 4th DCA 2000). A violation of probation proceeding is “set in motion” when an arrest warrant issues based upon an affidavit alleging a violation of probation. State v. Boyd, 717 So. 2d 524, 526 (Fla.1998).1 The filing of the affidavit and issuance of the warrant toll the probationary period “until the court enters a ruling on the violation.” § 948.06(1), Fla. Stat. (2002). A violation of probation warrant issues “at the time it is sig…1 / 2
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- White v. State, 714 So. 2d 440 (Fla. 1998)
- Galloway v. State, 680 So. 2d 616 (Fla. 4th DCA 1996)
- Asbell v. State, 715 So. 2d 258 (Fla. 1998)
- State v. Shiver, 700 So. 2d 780 (Fla. 2d DCA 1997)