Neskovski v. State

District Court of Appeal of Florida

Neskovski v. State

568 So. 2d 468, 1990 Fla. App. LEXIS 7316, 1990 WL 139626

CourtDistrict Court of Appeal of Florida

DecidedSeptember 27, 1990

DocketNo. 89-94

StatusPublished

Cited by3 cases

This text of 568 So. 2d 468 (Neskovski v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Neskovski v. State, 568 So. 2d 468, 1990 Fla. App. LEXIS 7316, 1990 WL 139626 (Fla. Ct. App. 1990).

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PER CURIAM.

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.

DAUKSCH and GRIFFIN, JJ., concur. GOSHORN, J., concurs specially with opinion.

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PER CURIAM.

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.

DAUKSCH and GRIFFIN, JJ., concur. GOSHORN, J., concurs specially with opinion.

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568 So. 2d 468, 1990 Fla. App. LEXIS 7316, 1990 WL 139626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neskovski-v-state-fladistctapp-1990.

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