Small v. State

District Court of Appeal of Florida

Small v. State

469 So. 2d 164, 10 Fla. L. Weekly 1177, 1985 Fla. App. LEXIS 14149

CourtDistrict Court of Appeal of Florida

DecidedMay 10, 1985

DocketNo. 85-69

StatusPublished

Cited by1 cases

This text of 469 So. 2d 164 (Small 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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Small v. State, 469 So. 2d 164, 10 Fla. L. Weekly 1177, 1985 Fla. App. LEXIS 14149 (Fla. Ct. App. 1985).

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Opinion

CAMPBELL, Judge.

Appellant seeks review of the trial court’s denial of his motion for post-conviction relief pursuant to rule 9.140(g), Florida Rules of Appellate Procedure (1985). We affirm.

Only one issue presented by appellant has merit. Appellant claims that the sixty-year sentences imposed for the offenses of attempted second degree murder and attempted kidnapping were in excess of the amount authorized by law. See Small v. State, 428 So.2d 337 (Fla. 2d DCA 1983). On remand, the trial court was directed to correct each sentence to thirty years. The trial court complied as to the attempted kidnapping charge. On the attempted second degree murder conviction, the trial court amended the judgment to reflect the crime was committed with a firearm so as to uphold the sixty-year sentence under the enhancement provisions of sections 775.087 and 775.084, Florida Statutes (1981).

According to State v. Overfelt, 457 So.2d 1385 (Fla.1984), the jury must make a specific finding as to whether the accused actually possessed a firearm during the commission of the crime.

We have ordered the record to be supplemented to demonstrate whether there was a specific finding by the jury that the offense was committed with a firearm as required by Overfelt. We have received the supplement consisting of the certified copy of the jury verdict which makes a specific finding of the use of a firearm.

We, therefore, affirm.

RYDER, C.J., and OTT, J., concur.

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CAMPBELL, Judge.

Appellant seeks review of the trial court’s denial of his motion for post-conviction relief pursuant to rule 9.140(g), Florida Rules of Appellate Procedure (1985). We affirm.

Only one issue presented by appellant has merit. Appellant claims that the sixty-year sentences imposed for the offenses of attempted second degree murder and attempted kidnapping were in excess of the amount authorized by law. See Small v. State, 428 So.2d 337 (Fla. 2d DCA 1983). On remand, the trial court was directed to correct each sentence to thirty years. The trial court complied as to the attempted kidnapping charge. On the attempted second degree murder conviction, the trial court amended the judgment to reflect the crime was committed with a firearm so as to uphold the sixty-year sentence under the enhancement provisions of sections 775.087 and 775.084, Florida Statutes (1981).

According to State v. Overfelt, 457 So.2d 1385 (Fla.1984), the jury must make a specific finding as to whether the accused actually possessed a firearm during the commission of the crime.

We have ordered the record to be supplemented to demonstrate whether there was a specific finding by the jury that the offense was committed with a firearm as required by Overfelt. We have received the supplement consisting of the certified copy of the jury verdict which makes a specific finding of the use of a firearm.

We, therefore, affirm.

RYDER, C.J., and OTT, J., concur.

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469 So. 2d 164, 10 Fla. L. Weekly 1177, 1985 Fla. App. LEXIS 14149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-state-fladistctapp-1985.

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